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Book 



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SOCIAL SCIENCE TEXT-BOOKS 
Edited by RICHARD T. ELY. 



THE NEW AMERICAN GOVERNMENT 
AND ITS WORK 



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v«-« 



Copyright, 1915, 
By THE MACMILLAN COMPANY. 



Set up and electrotyped. Published May, 19x5. 






PREFACE 

This book is intended for that large and growing circle of students 
and readers who want to know not only what the government is, 
but what it is doing, — its plans and results. In order to meet this 
need certain distinctive features, it is hoped, may be found in the 
present treatment. First — The work of the government is given 
fully as much space as its form or structure. Political forms 
are always of interest but they no longer occupy the centre of 
the stage. Government usefulness and activity are now coming 
strongly into the foreground and this fact should be clearly re- 
flected in our modern texts. Accordingly much greater emphasis 
than usual has been given to this part of the subject so thai 
the student may grasp the important achievements and problems 
of both nation and state. Second — In carrying out this thought, 
special attention is devoted to Government Regulation of Bus- 
iness because in all parts of the country this has assumed a 
prime interest for both the university student and the general 
reader. Third — Certain phases of Social Legislation have also 
been brought out in order to give a clearer statement of the govern- 
ment's work. Fourth — Judicial decisions unfolding and interpret- 
ing the vital and essential public powers have been assigned an 
unusually prominent place and have supplanted less important 
matters. The aim here has been to lend more reality, vividness 
and clarity to a subject that is already beset by too many generali- 
ties. Fifth — In describing the structural side of our system, a 
stronger emphasis has been placed upon the Executive in order to 
bring the picture more into harmony with the real facts of public 
practice. Executive leadership to-day is the outstanding feature 
of our institutions. Instead of combating this fact or presenting 
it as an aberration from the true type, the present book accepts it 
unreservedly as a new and more effective form of working out our 
public problems and welfare. The Executive both in State and 
nation is set forth not as a self-seeking usurper but rather as a factor 
for efficiency, a means of carrying out the popular will. Our govern- 
ment is not a finished product nor a perfect crystal, it is still grow- 
ing, and ever facing new problems. The Executive has shown 
itself to be peculiarly fitted to study and investigate these new 
conditions, to plan and propose modern solutions for them and to 
carry out the mandate of the people in the face of opposition and 
inertia. Sixth — Our government is here presented as a means of 
service. It is no longer a mere necessary evil,— nor is it a Moloch, 
calling upon men for sacrifice only, One goal the author has per- 
sistently kept before him, — to picture the new government as it 



VI PREFACE 

serves and helps the people, copes with their problems and aids 
in their struggle for a more abounding commonweal. Municipal 
government has not been included, since that subject is now han- 
dled in all the universities as a separate and distinct part of the 
field with its own special literature: Special acknowledgment is 
due to the editor of this series, Dr. Richard T. Ely, for his invalu- 
able criticism, suggestion, and advice. With the faculty and stu- 
dent body at Pennsylvania the author also enjoys such an intimate 
relation that he feels the book to be largely a product of their in- 
spiring friendship. To them it is dedicated. 

April, 191 5. 



_____—— 



TABLE OF CONTENTS 

PAGE 

Preface v 

List of Cases Cited ix 

Chapter 

I. Introduction 3 

II. The President 10 

III. The House of Representatives 45 

IV. The Senate 76 

V. The Powers of Congress — Taxation and Finance 94 

VI. The Powers of Congress — The Regulation of Commerce 119 

VII. The Powers of Congress — The Sherman Act 141 

VIII. The Powers of Congress — Publicity, The Trade Com- 
mission and The Clayton Act 165 

IX. The Powers of Congress — Federal Police Power over 

Interstate Commerce 187 

X. The Powers of Congress — Their Relation to State Pow- 
ers over Commerce 203 

XI. The Powers of Congress — The Postal Power 219 

XII. The Powers of Congress — The War Power 231 

XIII. The Powers of Congress— Control over the Territories 

AND OTHER POWERS .' 245 

XIV. The National Conservation Policy 260 

XV. The Federal Judiciary 275 

XVI. The State Government — The Constitution 298 

XVII. The State — Continued — The Executive, Legislature and 

Courts 314 

XVIII. The State and Its Work — Business Protection and Regu- 
lation 342 

XIX. The State — Continued — Labor 369 

XX. The State — Continued — The State and Education 399 

XXI. The State — Continued — Health, Charities and Correc- 
tion 419 

XXII. The State — Continued — Highways and Finances 442 

XXIII. Constitutional Protection of Business and Personal 

Rights — Safeguards of Individuals and Corporations . . . 453 

XXIV. Constitutional Protections — Continued— The Police 

Power 496 

XXV. Constitutional Protections — Taxation 519 

XXVI. The Party 540 

XXVII. Public Opinion 575 

XXVIII. The Civil Service 59a 

XXIX. Direct Legislation — The Short Ballot 609 

Appendix A — The Constitution _o 

Appendix B— The Distrust of State Legislatures— The Remedy. . 643 

The Short Ballot. 051 



vii 



TABLE OF CASES CITED 



Adams Express Co. v. Kentucky, 
206 U. S. 129, 1907. 215. 

Adams Express Co. v. Ohio, 165 U. S. 
194, 1897. 534. 

Addyston Pipe Co. v. U. S., 175 U. S. 
211, 1899. 146. 

Allgeyer v. Louisiana, 165 U. S. 578, 

1897. 470. 

American Steel & Wire Co. v. Speed, 

192 U. S. 500, 1904. 524. 
Anderson v. U. S., 171 U. S. 604, 

1898. 145. 

Atlantic Coast Line v. The R. R. Com- 
missioners of S. C, 207 U. S. 328, 
1907. 210, 485. 

Austin v. Tennessee, 179 U. S. 343, 
1900. 485. 

Bacon v. Illinois, 227 U. S. 504, 19 13. 

525. 
Bailey v. Alabama, 219 U. S. 219, 

1911. 459. 
Baldwin v. Franks, 120 U. S. 678, 

1887. 26. 
Baltic Mining Co. v. Massachusetts, 

231 U. S. 68, 1913. 541. 
B. & O. v. Interstate C. C, 221 U. S. 

612, 1911. 135, 511. 
Barbier v. Connolly, 113 U. S. 27, 

1885. 482. 
Barron v. Baltimore, 7 Peters, 376, 

1833- 458. 
Bauer & Co. v. O'Donnell, 229 U. S. 

1, 1913. 156. 
Beer Co. v. Massachusetts, 97 U. S. 

25, 1877. 502. 
Binghampton Bridge Case, 3 Wallace, 

51, 1865. 464. 
Board of Trade of Chicago v. Christie 

Grain & Stock Co., 198 U. S. 236, 

1905. 145. 
Bonaparte v. The Tax Court, 104 U. S. 

592, 1882. 522. 
Bowman v. Chicago Railway Co., 125 

U. S. 465, 1888. 204, 213, 214. 
Brown v. Houston, 114 U. S. 622, 

1885. 524. 
Brown v. Maryland, 12 Wheaton, 

419, 1827. 121, 203, 279. 
Browning, E. A., v. The City of Way- 
cross, 233 U. S. 16, 1014. 527. 
Bucks Stove & Range Co. v, Gompers, 

et al., 221 U. S. 418, 1911. 150. 



Caldwell v. N. C, 187 U. S. 622, 1903. 

529. 
California v. The Central Pacific R. 

R. Co., 127 U. S. 1, 1888. 530. 
Central Lumber Co. v. S. Dakota, 

226 U. S. 157, 1912. 361, 483. 
Champion v. Ames, 188 U. S. 321, 

1903. 192, 508. 
Chicago, Burlington & Quincy v. 

McGuire, 219 U. S. 549, 191 1. 

513. 
Cnicago, Milwaukee & St. Paul R. R. 

Co. v. Iowa, 233 U. S. 334, 1914. 

283. 
Chisholm v. Georgia, 2 Dallas, 419, 

1793. 280. 
Civil Rights Cases, 109 U. S. 3, 1883. 

486, 488. 
Cleveland, Cincinnati, Chicago & 

St. Louis Ry. v. Illinois, 177 U. S. 

514, 1900. 209, 485. 
C. C. C. & St. L. Ry. v. Backus, 

154 U. S. 439, 1894. 533. 
Coe v. Errol, 116 U. S. 517, 1886. 

523. 
Collector, The, v. Day, n Wallace, 

113, 1870. 97, 102. ^ 
Commonwealth v. Hamilton Mfg. Co., 

210 Mass. 383, 1876. 503. 
Connolly v. Union Sewer Pipe Co., 

184 U. S. 540, 1902. 480. 
Cooley v. The Port Wardens of 

Phila., 12 Howard, 299, 1851. 

203, 484. 
Corfield v. Coryell, 4 Washington 

C. C. 371, 1823. 487. 
Crandall v. Nevada, 6 Wallace, 35, 

1865. 487. 

Daniel Ball Case, The, 10 Wallace, 

557, 1870. 134. 
Darnell Co. v. Memphis, 20S U. S. 

113, 1906. 526. 
Dartmouth College v. Woodward, 4 

Wheaton, 518, 1819. 463, 499, 

501. 
Davidson v. New Orleans, 96 I*. S. or, 

1S77. 510. 

Debs, in re, 158 U. S. 504, 1895. 34. 
Degge v. Hitchcock, 229 U. S. 162, 

u)i,v 222. 

Dent v. West Virginia, [29 l\ S. 114, 
1889. 503. 



TABLE OF CASES CITED 



Downes v. Bidwell, 182 U. S. 244, 
1900. 100. 

Eastern States Retail Lumber Dealers' 

Assoc, v. U. S., 234 U. S. 600, 1914. 

151. 
Erie R. R. v. John Williams, 233 

U. S. 671, 1914. 211, 391. 
Escanaba Co. v. Chicago, 107 U. S. 

678, 1883. 204. 
Express Co. v. Kentucky, 214 U. S. 

218, 1909. 214. 

Fertilizer Co. v. Hyde Park, 97 U. S. 

659, 1878. 502. 
Ficklen v. Shelby Co., 145 U. S. 1, 

22, 1892. 538. 
Field v. Clark, 143 U. S. 649, 1892. 

257. 
Flint v. The Stone Tracy Co., 220 

U. S. 107, 1911. 100, 538. 
Frigate Gray v. The Ship Fraser, 21 

Howard, 184, 1859. 217, 484. 
Frisbie v. U. S., 157 U. S. 160, 1895. 

479. 

Galveston Ry. v. Texas, 210 U. S. 

217, 1908. 535. 
Geoffrey v. Riggs, 133 U. S. 258, 

1890. 26. 
German Alliance Insurance Co. v. 

Ike Lewis, 233 U. S. 389, 1914. 

469. 
Gibbons v. Ogden, 9 Wheaton, 1, 

1824. 203. 
Gompers v. The Bucks Stove & Range 

Co., 221 U. S. 418, 1911. 292. 
Gompers v. U. S., 233 U. S. 604, 1914. 

277. 

Harrison v. The St. Louis & San 
Francisco Ry. Co., 232 U. S. 318, 

1913. 475. 

Henry v. Dick, 224 U. S. 1, 191 2. 

155, 158, 176. 
Hepburn v. Griswold, 8 Wallace, 603, 

1869. 111. 
Hoke & Economides v. U. S., 227 U. S. 

308, 1913. 191. 
Hoke v. U. S., 227 U. S. 316, 1913. 

508. 
Holden v. Hardy, 169 U. S. 366, 1898. 

373, 508. 
Hopkins v. U. S., 171 U. S. 578, 1898. 

145. 
Horn Silver Mining Co. v. New York, 

143 U. S. 305, 1892. 539, 543. 
Houston Railway v. U. S. (The 

Shreveport Case), 233 U. S. 342, 

1914. 136, 349. 



Hurtado v. California, no U. S. 535, 

1883. 474. 
Hylton v. U. S., 3 Dallas, 171, 1796. 

98. 

Intermountain Rate Cases (U. S. v. 

' Atchison, Topeka & Santa Fe 
R. R.), 234 U. S. 199, 1914. 129. 

International Harvester Co. v. Mis- 
souri, 234 U. S. 199, 1914. 481. 

International Text Book Co. v. 
Pigg, 217 U. S. 91, 1910. 216, 
486. 

Ives v. S. Buffalo Ry. Co., 201 N. Y. 
271,1911; 94 N. E. 431. 380. 

Johnson Case, The Dr., "cancerine " 
remedy, 221 U. S. 488, 191 1. 195. 

Joint Traffic Association Case, 171 
U. S. 505, 1898. 144. 

Jones v. The U. S., 137 U. S. 202, 
1890. 43. 

Juillard v. Greenman, no U. S. 421, 

1883. 111. 

Kane v. Erie R. R., 142 Fed. Rep. 

682, 1906. 378. 
Keller v. U. S., 213 U. S. 138, 1909. 

189. 
Kentucky v. Dennison, 24 Howard, 

66, i860. 325. 

Lake Shore & Michigan So. Ry. v. 

Ohio, 173 U. S. 285, 1899. 209, 485. 

Legal Tender Cases, no U. S. 421, 

1884. 111. 

Leisy v. Hardin, 135 U. S. 100, 1890. 
212, 214, 485. 

Leloup v. Mobile, 127 U. S. 640, 1888. 
530. 

Live Stock Exchange Cases. 145. 

Loan Association v. Topeka, 20 Wal- 
lace, 655, 1874. 519. 

Lochner v. New York, 198 U. S. 45, 
1905. 507. 

Loewe v. Lawlor, 208 U. S. 274, 1908. 
150, 153. 

McCall v. California, 136 U. S. 104, 

1890. 530. 
McCray v. U. S., 195 U. S. 27, 1904. 

103. 
McCulloch v. Maryland, 4 Wheaton, 

316, 1819. 102, 181, 255, 521. 
McDermott v. Wisconsin, 228 U. S. 

115, 1913. 198, 424. 
Magoun v. Illinois Trust Co., 170 U. S. 

283, 1898. 544. 
Maine v. Grand Trunk Ry. Co., 142 

U. S. 217, 1891. 535, 538. 



TABLE OF CASES CITED 



XI 



VMarbury v. Madison, i Cranch, 137, 

1803. 285. 
Miles Co. v. Park Drug Co., 220 U. S. 

373, ion. 158. 
Minnesota Rate Case, 231 U. S. 1913 ; 

(Simpson v. Shepard). 282. 
Montague & Co. v. Lowry, 193 U. S. 

38, 1904. 146. 
Mugler v. Kansas, 123 U. S. 623, 1877. 

507. 
Munn v. Illinois, 94 U. S. 113, 1876. 

468. 
Murray v. Charleston, 96 U. S. 432, 

1877. 522. 
Murray's Lessee v. The Hoboken 

Land Co., 18 Howard, 272, 1855. 

473-475. 

/ Neagle, In re, 135 U. S. 1, 1890. 
L 43. 

N. Y., Lake Erie & Western R. R. 

Co. v. Pa., 158 U. S. 431, 438, 

1895. 538. 
N. Y. Life v. Deer Lodge Co., 231 

U. S. 495, 1914. 344. 
N. Y., N. H. & Hartford R. R. v. N. Y., 

165 U. S. 628, 1897. 205, 485. 
Noble Bank v. Haskell, 219 U. S. 104, 

1911. 513. 
Norfolk & Western Ry. Co. v. Sims, 

191 U. S. 441, 1903. 528. 
Northern Securities Co. v. U. S., 193 

U. S. 197, 1904. 147. 
Northwestern Fertilizing Co. v. Hyde 

Park, 97 U. S. 659, 1878. 482. 

Opinion of the Justices, 150 Mass. 

592, 1890. 520. 
Opinion of the Justices, 209 Mass. 

607. 520. 
Osborne v. The National Bank, 9 

Wheaton, 738, 1824. 520. 

Patterson v. Ky., 97 U. S. 501, 1878. 

206. 
Paul v. Va., 8 Wallace, 168, 1868. 

490, 529. 
Pembina Mining Co. v. Pa., 125 U. S. 

181, 1888. 490, 539. 
Pensacola Telegraph Co. v. Western 

Union Telegraph Co., 96 U. S. 1, 

1877. 121. 
Phila. Fire Assoc, v. N. Y., itq U. S. 

no, [886. 540. 
Phila. Steamship Co. v. Pa., 122 U. S. 

326, [886. 544. 
Plessy v. Ferguson, 16$ U. S. 537, 

[896. 461,489. 
Plumley V. Mass., 155 U. S. 461, iSos- 
207, 485, 511. 



Pollock v. The Farmers' Loan & 

Trust Co., 158 U. S. 601, 1895. 

96, 97, 98, 100, 283. 
Popper v. U. S., 98 Fed. Rep. 423. 

193. 
Postal Telegraph Cable Co. v. Adams, 

155 U. S. 688, 697, 1895. 538. 
Powell v. Pa., 127 U. S. 678, 1888. 

532. 
Pullman Co. v. Kansas, 216 U. S. 

56, 1909. 536. 
Pullman's Palace Car Co. v. Pa., 141 

U. S. 18, 1891. 538. 

Rahrer, In re, 140 U. S. 545, 1891. 

213, 485. 
Railroad v. Husen, 95 U. S. 465, 1877. 

205. 
Rhodes v. Iowa, 170 U. S. 412, 1898. 

214. 
Robbins v. The Shelby Co. Taxing 

District, 129 U. S. 489, 1887. 526. 
Russell v. Sebastian, decided April 6, 

1914, 233 U. S. 195. 465. 

Sanatogen Case (Bauer & Co. v. 

O'Donnell), 229 U. S. 1, 1913. 156. 
San Joaquin Canal & Irrigation Co. v. 

Stanislaus Co., Calif., decided April 

27, 1914, 233 U. S. 454. 357. 
Santa Clara v. The S. Pacific R. R. Co., 

118 U. S. 394, 1886. 478. 
Schollenberger v. Pa., 171 U. S. 1, 1898. 

208, 485, 511. 
Shreveport Case (Plouston Ry. v. 

U. S.), decided June 8th, 1914, 

2 33 U. S. 342. 136. 
Simpson v. Shepard, 231 U. S. 1913. 

136, 282. 
Singer Sewing Machine Co. v. Brickell, 

et al., decided April 6, 19 14, 233 

U. S. 304. 529. 
Slaughter House Cases, 16 Wallace, 

36, 1873. 486. 
Smith v. Alabama, 124 V. S. 465, 

1888. 206, 485. 
Smith v. Texas, decided May 1 1, 1914, 

233 U. S. 630, 1014. 505. 
Smythe v. Ames, 169 U. S. 466, [898 

(547-8). 477, 478. 
S. Carolina v. U. S., 100 l\ S. 437- 

ioov 97. 
Southern Ry. v. U. S., 2- U. S. 20. 

1011. 137. 
Springer v. U. S., 102 U. S. 586, 1880. 

98. 
Standard Oil Co. v. V. s.. .v, r. S. 1. 

101 1. 147. 
Stone p. Mississippi, 101 V. S. S14, 
1870. 501. 



Xll 



TABLE OF CASES CITED 



Straus & Straus v. The American 
Publishers Association & The Amer- 
ican Booksellers Association, 231 
U. S. 222, 1913. 157. 

Sturges v. Crowninshield, 4 Wheaton, 
192, 1819. 465. 

Swift, et al. v. U. S., 196 U. S. 375, 
1905. 143, 170. 

Tax Collector v. Day, 11 Wallace, 

113, 1870. 95. 
Thompson v. Union Pacific, 9 Wallace, 

579, 1869. 531. 
Twining v. New Jersey, 211 U. S. 78. 

472. 

Union Pacific v. Peniston, 18 Wallace, 

5,i873. 531. 
U. S. v. American Tobacco Co., 221 

U. S. 106, 1911. 147. 
U. S. v. Atchison, Topeka & Santa Fe 

R. R. (Intermountain Rate Cases), 

234 U. S. 476, 1914. 129. 
U. S. v. B. & O., 17 Wallace, 322, 1873. 

96. 
U. S. v. Cruikshank, 92 U. S. 542, 

1876. 488. 
U. S. v. E. C. Knight Sugar Refining 

Co., 156 U. S. 1, 1895. 121, 142, 

143. 
U. S. v. James A. Patten, et al., 226 

U. S. 525, 1913. 153. 



U. S. v. Johnson, 221 U. S. 488, 1911. 
195. 

U. S. v. Popper, 98 Fed. 423, 1899. 
508. 

U, S. v. Terminal R. R. Association of 
St. Louis, 224 U. S. 383, 1912. 
148. 

U. S. v. Trans. Mo. Freight Associa- 
tion, 166 U. S. 290, 1897. 144. 

U. S. Express Co. v. Minnesota, 223 
U. S. 335, 1912. 537. 

Veazie Bank v. Fenno, 8 Wallace, 533, 
1869. 96. 

Ware v. Mobile, 209 U. S. 405, 1908. 

529. 
Western Union Co. v. Kansas, 216 

U. S. 1, 1909. 536, 541. 
Weston v. Charleston, 2 Peters, 449, 

1829. 521. 
S. S. White Dental Co. v. Mass., 231 

U. S. 15, 1913. 541. 
Wilson v. The Marsh Co., 2 Peters, 

245, 1829. 217, 485. 
Wisconsin & Michigan Ry. Co. v. 

Powers, 191 U. S. 379, 1903. 537. 
Woodruff v. Parham, 8 Wallace, 123, 

1867. 523. 

Yick Wo v. Hopkins, 118 U. S. 356, 
1885. 479, 510. 



THE NEW AMERICAN GOVERNMENT 
AND ITS WORK 



THE NEW AMERICAN GOVERNMENT 

CHAPTER I 

INTRODUCTION 

HOW BUSINESS INFLUENCES GOVERNMENT 

Our national government is passing through an era of sweeping 
and important changes. The one central fact that stands out 
clearly in all these changes is the concentration of power. Political 
leaders have decried this tendency, magazine writers have de- 
nounced it, newspaper editors have deplored it, even the people 
themselves dislike and distrust what is called "centralization," yet 
it goes steadily on with such quiet, irresistible force that we must 
finally accept it as a feature of our plan of government. Let us 
glance at some of the forms of concentration produced by the con- 
ditions of the last few decades. 

1. The Supremacy of the National Government. — In the titanic 
struggle between the State and the Nation, victory has been with 
the Nation. This question was settled in one form as long ago as 
the Civil War, but since then the national government has grown 
strong not by reason of military power but because of the magni- 
tude of our internal problems and our growing foreign policy. Leav- 
ing behind us the petty jealousies of the States we have become 
Americans, and our sympathies and interests lie with the whole 
people rather than with any section. Foremost in producing this 
result has been the unifying and consolidating force of our expand- 
ing business interests. These have knit us together in a way that 
no constitutional convention could ever have accomplished. It 
is related of President Lincoln that desiring to arrange for the trans- 
portation of Union troops to the South, he sent for Mr. Thomas 
Scott of the Pennsylvania Railroad, and with him went over a 
railway map of the country. The President expressed his astonish- 
ment at finding that all the great lines ran East and West and that 
the problem of rail transporting southward was an almost impos- 
sible one. To all of which Mr. Scott tersely replied, "Mr. Presi- 
dent, if the railroad lines had run North and South, there would 
have been no war." 

In 1789 every influence seemed to favor the supremacy of the 
State as the center o\ gravity in government. The scheming of 
small politicians, the State patriotism of the people, the traditions 



4 THE NEW AMERICAN GOVERNMENT 

of local self-government, the fear of centralization, all of these 
forces made the people chary of conferring strong powers on the 
central authority. But gradually the farmer and the banker, the 
cotton grower and the manufacturer have found that their in- 
terests although located in different parts of the country, were 
closely intertwined. " Business " has refused to be confined within 
bounds and has reached out to include whole sections and districts, 
located in more than one State. This expansion was hastened by 
the stock corporation, which by its immense capital made it pos- 
sible to unite the branches of an entire industry. When finally the 
rise of swift and cheap transport facilities and means of communi- 
cation generally, brought all sections of the people into the closest 
business relations with each other, the knell of State sovereignty 
was sounded and the supremacy of the union became inevitable. 
The Nation was first. 

2. In the struggle just described, Congress has developed much 
greater powers than it exercised fifty or even thirty years ago. 
New problems have arisen which could not have been foreseen by 
the Fathers of the Constitution. New mechanical inventions have 
occurred revolutionizing the world of commerce and enormously 
increasing those aspects of business that come under the control of 
the national government. To meet these new needs Congress has 
extended its activity beyond the old limits until at the present time 
the legislative power of the Nation has reached a point that would 
have been regarded as dangerous, if not fatal, by the framers of 
the Constitution. Yet this concentration has been in response to 
a strong natural demand, and has resulted favorably to the welfare 
of the people. 

3. Inside Congress a Few Men in Each House have Succeeded 
in Gaining Sufficient Power to Control Legislation. — They have 
built up a clique or organization of leaders whose sway over the 
law-making bodies is well-nigh absolute. The average congressman, 
unless he belongs to the organization, is powerless. This peculiar 
legislative system, which is described in detail in the Chapter on 
The House of Representatives, is generally admitted to be danger- 
ous and even harmful, but it has survived because it seemed to be 
the less of two evils. The alternative is stagnation. Concentration 
of power is necessary in order to carry out the party program. The 
people have held the majority party responsible for legislation, and 
that party in order to fulfill its pledges and strengthen its hold on 
popular favor has felt obliged to centralize. 

4. But the greatest example of political concentration is seen 
in the executive office. 1 Here our country has turned its back on 
the traditions of Revolutionary days and has created a one-man 
power of the strongest type. The President, who was intended 
to be merely an agent of the Congress, has become the leader of 
both legislative and executive branches. Such a change has not 

1 See the Chapter on The President. 



INTRODUCTION 5 

been deliberately planned, but has come about through the same 
necessity for producing results and for getting work done that has 
affected the other parts of the government. The President to-day 
and the President of a century ago really belong to two distinct 
types of government, and though the text of the Constitution 
remains unchanged, yet the substance of the Presidential influence 
has increased beyond the worst fears of the Fathers. He is now the 
leader, if not the master, of the government. 

The Theory of Checks and Balances. — The great changes just 
described have all been opposed to the spirit and intentions of the 
men who drafted our form of government. If there was one fear 
that animated all members of the Convention of 1787, it was the 
dread of highly concentrated power. As Englishmen they had long 
believed in the doctrine that government should be built up of 
Checks and Balances, that is, every authority, officer or legislative 
body should have some other authority which would check its 
power and prevent it from becoming absolute or despotic. One 
form of this doctrine is the theory of " Division of Powers." A 
brilliant French writer, in a book l which was read and studied 
carefully by influential members of the Convention of 1787, de- 
clared that the division of government into the executive, legisla- 
tive, and judicial departments was a necessary means of preserving 
the liberty of the citizens against oppression. His method of rea- 
soning was simple. He asks, in what country is the freedom of the 
citizen best preserved? At the time' of writing England was un- 
doubtedly the freest country in the world. How is this freedom of 
the citizen secured in England? The author's answer was that the 
British government at that time separated sharply the executive 
power of the King from the legislative power of Parliament and 
the judicial power exercised by judges appointed for life. No other 
country at that time carried this division of powers as far as did 
Great Britain. Montesquieu therefore concluded that the division 
of powers was the most effective means of preserving the liberty of 
the citizen from government despotism. The Fathers followed 
this theory faithfully in 17S7. The three departments were sepa- 
rated as far as possible, and where their co-operation was necessary, 
they were set in balance as checks against each other. It will be 
noticed that the underlying motive of the Fathers was the fear of 
oppression. Briefly expressed it is: "Let us divide governmental 
power into minute particles, giving a small part to each authority 
so that none may become supreme or even dangerous." 

Such in brief is the famous doctrine of Checks and Balances. It is 
a theory inspired by fear. This theory is now confronted by a new- 
set of intensely practical conditions: namely, 

I. The growth in volume of government business. 
II. The rise of technical questions in government. 

III. A popular demand for greater speed in government action. 
1 Montesquieu • The Spirit of the Laws. 



6 THE NEW AMERICAN GOVERNMENT 

IV. The large size and slowness of legislative bodies. 

I. Growth of Government Business. — The rise of manufactur- 
ing industry and large transportation enterprises has immensely 
increased the duties of all branches of our government. Manufac- 
turing has involved: 

Government efforts to aid and protect the national industries 
in every legitimate way, 

The rise of the factory system, 

The development of commercial law, requiring uniformity, 

The desire for equal opportunity for all manufacturers and ship- 
pers on the railways, 

Need of technical education, 

Rise of large cities, 

Demand for better health protection both in factory and tene- 
ment house, 

Use of child labor, 

Growth of a distinct labor class with separate interests, 

Rise of other class interests. 

As we glance over this list the surprising fact appears that every 
one of the changes noted involves some necessity for government 
action. Many of them fall under the authority of the State and 
city governments, yet all influence directly or indirectly the na- 
tional government also, so that its work has multiplied by great 
leaps and bounds in the last few decades until, at the present time, 
each Congress is inundated by an avalanche of over 30,000 bills, 
orders and resolutions. This great increase in the volume of public 
business means that a radical change must be made in the old 
methods of work and in our government machinery, in order to 
secure results. 

II. The Technical Nature of Modern Public Questions. — Most of 
the government problems of to-day cannot be settled by a popular 
vote. Even though our voters were all university graduates we 
could not reasonably demand that they work out a plan of govern- 
ment regulation or control. The location of an Isthmian Canal, 
the reorganization of the army, the construction of a navy, the 
more rational development of our postal facilities, the planning of 
systems of irrigation, the regulation of corporate finance, the con- 
trol of railway rates and the management of our colonial depen- 
dencies are national questions of prime importance that cannot be 
settled by simple common sense and patriotism. They require 
rather the careful study of trained specialists and experts. If we 
examine the public problems brought up for discussion in the Presi- 
dent's message we find that they are not only industrial or commer- 
cial but also technical in character. 

How does this fact influence our government? Unquestionably 
it causes a greater concentration of power, because it means the 
gathering of these technical problems into the hands of men with 
scientific training and skill whose function is to present their solu- 



INTRODUCTION 7 

tion in such form that legislative bodies and the public generally 
can say "yes" or "no." Such a method of handling public ques- 
tions is impossible under the old system of divided powers and 
responsibilities. The modern plan involves strong leadership and 
the systematizing of public affairs to an extent that was unknown 
in the earlier decades of the Republic. Our government hitherto 
has resembled some large industry, like that of sugar refining for 
example. A large number of small, independent plants, with ex- 
pensive methods of production, high prices and a limited demand 
form the first stage of development. Then comes a stronger de- 
mand, new and important mechanical processes are discovered and 
it becomes possible to apply these processes so profitably by manu- 
facturing on a large scale that the price of the product falls rapidly. 
Furthermore the development of the industry leads to the opening 
up of new lands and it becomes necessary for the sugar refiner to 
enter into closer business relations with the beet growers. Even- 
tually also the refining interests find it profitable to purchase large 
tracts of sugar cane land in the tropics and operate immense plan- 
tations. But with each of these stages in the development of the 
industry, the business becomes more complex and requires a greater 
use of skilled experts and specialists. Eventually the whole sugar 
industry is reorganized on a modern basis; those enterprises which 
are able to make use of the latest scientific researches and inventions 
survive, and those which fail to do so are gradually displaced by 
competition. In this process the industry has been centralized 
under the control or leadership of one or two large corporations 
because production on a large scale, the systematizing of methods 
and the development of valuable inventions can only be secured 
by concentrating the management and control of the business. 

So with our government: The early stage of divided powers and 
checks and balances continued as long as the number of things to 
be done by the government was small and the nature of these tasks 
was simple, but as greater and more complicated problems began 
to present themselves the advantages of system, science and method 
increased until finally the government is being reorganized on a 
modern basis of efficiency. It is this greater effectiveness that 
justifies concentration. 

III. The Demand for Quick Government. — An interesting change 
in the political psychology of the American people is the nervous- 
ness and impatience of delay that we now show towards public 
questions. Instead of the meditation and reflection on political 
problems that marked our early history as a nation we now think 
in sudden gasps, spasms and outbursts of emotion. Whether it be 
the hysterical outbreak of a lynching mob or the serious, earnest 
efforts of a city improvement club, we are inclined to rush matters, 
and we are impatient of obstacles, once it is known that an evil 
exists and demands a remedy. The age oi oratory, eloquence and 
prolonged discussion has almost passed. The people want action, 



8 THE NEW AMERICAN GOVERNMENT 

immediate action. Doubtless it were better that more deliberation 
be exercised, that in the quaint phrase of a former State governor 
"celerity should be con tempered with cunctation," but such is not 
the view of the people as a whole. 

This demand for a quick government is after all an inevitable 
result of our surroundings. It is primarily due to modern means 
of communication, which enable us to speak five times where we 
formerly thought once. We see and communicate with more people, 
travel over a larger territory, are interested in a far broader scope 
of affairs and transact more business in one day than our fore- 
fathers could in a fortnight, — all because of better means of com- 
munication. The demand for speed feeds on itself. With each year 
a larger proportion of human energy is devoted to the saving of 
time. Modern business conditions are in this way breeding a 
"quick" man with swift mental processes, a wonderful capacity 
to see and grasp the opportunities of the moment, but with a cor- 
responding intolerance of delay. Is it strange that this new type 
of man wants a government that will produce quick results? But 
a quick government means a concentrated government. Not only 
must the control of these urgent matters be placed in the central 
authority, but within the latter itself the executive and legislative 
work must be so arranged that affairs can be dispatched and deci- 
sions reached with the utmost celerity. 

Such are the new and changed conditions which in the last thirty 
years have arisen to confront our government,— our government 
which was founded on the old theory of checks and balances. Any 
one of these influences would have been enough of itself to cause 
some change in our political methods, but all combined have been 
irresistible; before them the whole fabric of divided powers has 
given way and a new system is taking its place. 

But in all that has been said, it must be remembered that we 
Americans have not voluntarily given up the old doctrine of division 
of powers — we have not intentionally gone about to repeal that doc- 
trine. The man who invented the steam engine and the trolly motor 
is responsible for it. A political theory is the result of conditions; a 
change of conditions brings a new theory. The passenger elevator 
has changed the architecture and "sky line" of our cities, the 
discovery of germs has given us a new preventive policy of public 
health; and so, gradually and insensibly without the blare of trum- 
pet or the eloquence of orators our mechanical and industrial 
growth has created a new political philosophy. The keynote of 
this newer American government is Efficiency. Work must be 
done, problems attacked and solved, national policy planned and 
executed; the government must produce results for the people. 
We have always thought of government as a necessary evil. We 
have been patriotic, we have fought, bled, and died for our native 
land, but for the government itself we have always cherished the 
half-concealed feeling that the less it attempted, the better. Our 



INTRODUCTION 9 

grand old Constitution itself is always referred to on the Fourth 
of July as the " palladium of our liberties," which in plain English 
means, that it keeps the government from abusing us. That curious 
persistent idea, — that the government must always be kept from 
doing something which it is about to perpetrate, is now on the eve 
of disappearance, and we are developing in its place a new thought 
that the government is to perform a great and increasing amount 
of public service for the whole people. Government is now to be 
a means to an end, not the end itself. We are no longer, in the 
words of a prominent New Yorker, to believe that government is 
like the air, to be noticed only when it is bad. Hereafter, it is to 
be not a burden but a convenience. And what a marvelous vista 
of possibilities this new doctrine has already opened up in our na- 
tional policy. Millions of acres of land have been reclaimed for 
cultivation by modern systems of drainage and irrigation. Hun- 
dreds of millions of dollars worth of new crops have been added to 
our national wealth and prosperity by the Department of Agri- 
culture. The people of hitherto unattainable regions of South 
America and Australia are brought within the reach of the Atlan- 
tic seaboard by the greatest engineering feat of modern times. 
And in the State governments the new idea is taking root no less 
rapidly and with amazing results. Hitherto unconquerable ob- 
stacles to greater prosperity, and problems of health and crime and 
poverty are now being attacked with the confidence and inspira- 
tion born of this new belief that the purpose of government is 
Service. It is this belief in the greater usefulness of government 
that has created the demand for efficiency. Against this universal 
demand are balanced the fears of the fathers, the general dislike of 
concentrated power, the traditional arguments against centraliza- 
tion and the natural conservatism of our people in political matters. 
Efficiency has gradually turned the scale. We are fairly launched 
on our new career with a set of political institutions whose form 
is the same as of yore, but whose real substance is as different from 
that planned in 1787 as are the conditions of that day from ours. 

REFERENCES 

Herbert Croly: Progressive Democracy, 
W. H. Allen: Efficient Democracy. 



CHAPTER, II 
THE PRESIDENT 

In our progress towards a stronger system of government, the 
great surprise of the Constitution has been the Executive. Designed 
to be a mere faithful agent of the Congress, he has become the real 
head of the government; dreaded by all as a prospective tyrant he 
has grown to be a tribune of the people. It is not easy to find a 
single aspect of the President's office which has worked out as it 
was originally intended. The limits and restrictions placed on 
him have proven vain, the powers originally given him have grown 
steadily with the increasing work of government, and the attitude 
of the people has become one of dependence rather than distrust. 
Even the method of choosing the President, upon which the fathers 
spent so much of their ingenuity and inventive skill has worked out 
far differently from their plans. If the men of 1787 could see the 
Executive office as it is to-day they would not recognize their handi- 
work. Yet with few exceptions the changes have been along the 
line of greater simplicity, directness and strength and have all 
tended to make the government more effective and more respon- 
sive to the popular will. 

Election of the President. 1 — The thought of the framers was 
that the President should be removed from the masses of the people 
by an indirect election, in order to prevent some wave of popular 
enthusiasm from sweeping into office a demagogue or a military 
leader who might subvert the political institutions of the new 
Republic. To prevent this the fathers designed the plan of selec- 
tion by Presidential Electors who in turn should be chosen by the 
various States in such manner as the State legislatures would de- 
termine. It was expected that the legislatures themselves would 
choose the Electors, and this method was at first followed. It 
was also expected that the Presidential Electors when chosen, 
meeting in each State at the capitol, would weigh and consider 
the merits of respective candidates, making a choice perhaps from 
prominent members of Congress who were known to be men of 
proved statesmanship and ability. As there were in 1787 no par- 
ties such as later developed, it was not foreseen that party politics 
would play any role in the choice. In order to secure the election 
of an equally qualified man as Vice-President it was originally 
provided that in balloting at the State capitol each Presidential 
Elector should vote for two persons for President, and that of 

1 The method of nominating the President is described in the Chapter on Thy 
Party. 



THE PRESIDENT II 

these two, the one who received the majority of all the Electoral 
votes should be the President, and he who received the next largest 
number should be the Vice-President. Such in brief was the plan 
of Presidential election. Its essential feature was the choice by 
"the best" of the people, it being assumed that the Presidential 
Electors would be "the best" because they were chosen by men 
of unusual ability, to wit, the State legislatures. But although 
this plan had been thought out with great care it was not based 
upon the real political conditions of the time and it did not provide 
for political parties. It was not a natural method. 

The Indirect Method in Practice. — The Election of 1800 in which 
Jefferson and Burr were the chief contestants showed that the plan 
was weak in important points, notably that so long as each Presi- 
dential Elector voted for two persons for President there was a 
danger that the man who received the second highest number of 
votes and thereby became Vice-President would be of a different 
party from the President. In case of the death of the President the 
control of the Executive would therefore pass to the minority 
party. Party feeling at this time was even more bitter than at 
present. In order to remedy this weakness the Twelfth Amendment 
was adopted in 1804; its principal provisions are that each Presi- 
dential Elector shall vote for one person as President and one per- 
son as Vice-President. 1 Another feature of the indirect system/ 
which has attracted much attention, is its uncertainty. In 1876 
a serious dispute arose over the contested returns from four doubt- 
ful States. These votes would decide the election, and in each 
State two sets of returns, one Republican and one Democratic, 
were sent to Washington. On account of the importance of the 
dispute, an Electoral Commission of fifteen members was pro- 
vided for by Congress to decide which returns should be accepted. 
Eight of the members were Republicans and seven Democrats. 
By a strict party vote of eight to seven the Republican returns 
were accepted from all four States and the Republican candidate, 
Hayes, was thereby declared elected over his Democratic com- 
petitor, Tilden. The partisan nature of the Electoral Commission 
vote and the fact that Tilden had the larger number of popular 
votes led to great dissatisfaction and even to talk of civil strife. 
Congress has therefore provided by law that in case any State shall 
hereafter send in two sets of returns, those returns shall be counted 
which are accepted by both Houses acting separately, and in case 
the two Houses cannot agree the vote of the State shall be lost. 

A third criticism has been aroused by the needless complexity of 
the indirect system. All the Electors are now chosen by the voters, 

1 Tn case no one Presidential candidate receives a majority of all the electors, 
the House of Representatives chooses the President from the three candidates 
having the highest votes. After the popular election in November, the Pres- 
idential Electors meet at the respective State capitols on the tirst Monday oi the 
following January, and cast their votes. The returns from the respective States 
being sent to Washington are counted on the second Wednesday of February. 



12 THE NEW AMERICAN GOVERNMENT 

why not let the people vote directly for the President? The originat 
idea that the masses of the people should not know who the candi- 
dates would be, and that they should not take part in the choice 
has now been abandoned for over a century. The nominee of each 
party is chosen in a party convention in June or July, and is known 
to the people as a candidate. Furthermore, the men nominated 
as the Presidential Electors by each party if elected, are morally 
pledged to vote for the candidate of their party: — to vote for the 
opposite party's candidate would be universally regarded as an 
act of treachery, although it could not be punished by law. The 
ballot used in the popular election of the Electors clearly states 
which party they will support if elected. For example the names 
of the Republican Electors are grouped in one column, under the 
name of that party, the Democrats in another, etc. Everything 
possible is therefore done in order that the people may understand 
clearly and make a conscious choice. To preserve the old fiction 
that the people are not electing the President is therefore in the 
face of all these facts, manifestly unwise and even harmful. It is 
true of all political institutions that the greater their naturalness 
and simplicity, the greater their chances of success and permanence. 
Our Presidential electoral system has failed because it is a complex 
method based on a distrust of the people. 

Injustice of the Indirect Method. — Finally, the gravest and most 
serious weakness of the indirect plan is that one candidate may be 
chosen by the people while another is elected by the Electors. The 
popular choice is thus defeated. Twice in our history this unfor- 
tunate result has occurred. In 1876 Samuel J. Tilden received a 
popular plurality but was defeated in the Electoral Commission, 
and in 1888 Grover Cleveland received a popular plurality of 
98,017 but the Electoral College by a majority of 65 votes elected 
Benjamin Harrison. 

This is possible because in choosing their Presidential Electors 
the States do not divide themselves into districts with one Elector 
for each district, as is done in the election of Congressmen, but each 
State gives all of its Presidential Electors to that party which wins 
the popular election in the State, no matter how small the majority 
may be. The popular majority in a State may be only 1,000 for a 
party, yet that party receives all the Electors. The minority are 
given none. 

New York has 45 Presidential Electors. 
Pennsylvania has 38 Presidential Electors. 

New York is a "doubtful " State, with the parties evenly divided, 
while Pennsylvania was for years overwhelmingly Republican. 
Let us suppose that Pennsylvania gives the Republican ticket a 
majority of 200,000 popular votes and that New York goes Demo- 
cratic by only 50,000 popular majority. Omitting the rest of the 
States from the calculation the result of the election in these two 
would then be: — 



THE PRESIDENT 13 

POPULAR MAJORITY 

Republican : Pennsylvania 200,000 

Democratic: New York 50,000 

Net popular majority: 150,000 for the Republican ticket in the two 
States. 

ELECTORAL MAJORITY 

Democratic: New York, 45 electoral votes 
Republican: Pennsylvania, 3% electoral votes 

Net electoral majority in the two States, 7 Presidential Electors 
for the Democratic ticket. 

In this way the Republicans would win the greatest popular 
vote but the Democrats would secure a majority of the Electors 
and with it gain the election. This important difference between 
the popular vote and the electoral vote is shown by the election 
of 1908, when of the entire vote secured by the two leading candi- 
dates, Mr. Taft secured 70% of the Electors by winning only 55% 
of the popular vote for the two men, in 191 2, taking again the shares 
obtained by the two leaders, Mr. Wilson got 83% of the Electors 
by winning only 60% of the popular vote for the two men. The 
indirect system is a standing peril of civil dissension and strife. 

The question arises — why not give each candidate a proportion 
of the electoral votes equal to his proportion of the popular vote. 
If he secured three-fifths of the total popular vote in any State let 
him receive three-fifths of the Presidential Electors from that State. 
The answer is that the Constitution has left the method of choosing 
Electors entirely to the States. In Article II, Section 1, Clause II, it 
is provided that "Each State shall appoint, in such manner as the 
legislature thereof may direct, a number of Electors." The controlling 
party in each State, under this plan enjoys the advantage of de- 
priving the minority party of all electoral votes. While the people 
as a whole would prefer a fair system, the local party interests in 
each State would be injured by a change. A change of method 
can only be secured by the rise of a strong favorable sentiment in all 
the States, and when that comes it may take the form of a demand 
for direct election, following the method now used in choosing 
Senators and Representatives. 

Salary. — The Constitution does not fix the President's salary, 
but leaves this to Congress, with the single restriction that his 
compensation "shall neither be increased nor diminished during 
the period for which he shall have been elected, and he shall not 
receive within that period any other emolument from the United 
States or any of them." While he may not be paid more as a part 
of his salary or emolument he may and does receive other allow- 
ances. The President's salary has been raised from $25,000 at the 
outset of the government to s $75,ooo at the present time; there 
are also numerous allowances for clerk hire in the White House. 



14 THE NEW AMERICAN GOVERNMENT 

travelling expenses $25,000, repairs, furnishings of the executive 
mansion and other smaller items. The President is also allowed a 
contingent fund of $25,000. It is not unusual for the total Presi- 
dential expenses, including all items connected with the White 
House and grounds, to amount to $300,000. Even at this figure 
he is paid less than most European executives, particularly when 
the size and wealth of the country are considered. The President's 
personal expenses are heavy, so that few of our national Executives 
have been able to save any great part of their salaries. 

The President's Powers. — The Constitution confers five impor- 
tant powers on the President : 
I. Appointments. 
II. Legislation. 

III. Foreign Relations. 

IV. General Enforcement of the Laws. 

V. Command of the Military and Naval Forces. 
The above is the order of importance of these powers in ordinary 
times; it may be temporarily changed or reversed by special cir- 
cumstances. A war may raise the Executive to the rank of a mili- 
tary dictator; a series of negotiations with foreign powers, at some 
critical moment, may focus all eyes upon his control over our rela- 
tions with other peoples, but in the long run the order above given 
tends to re-establish itself. It is remarkable that of the five powers 
named, the last is probably the only one which is exercised in the 
way and to the extent intended by the fathers. 

I. The Appointing Power. — Former President Harrison said of 
appointments to the Federal service, that the President spent from 
four to six hours daily during the first half of his term in hearing 
applications for office. This gives some idea of the practical mean- 
ing which the power has for the President to-day. Yet, as originally 
conferred by the Constitution it did not seem extensive. Although 
it included all the positions in the Federal service, these were sur- 
prisingly few, slightly over a thousand. Most of them are reported 
to have been made personally by the President. The number of 
positions in the Civil Service at the present time is 400,000, of which 
the President with the advice and consent of the Senate, appoints 
about 7,800. It is manifestly impossible for one man to make the 
actual selection for any considerable number of the vacancies 
occurring in these offices; the practice therefore early arose of allow- 
ing a Senator or Representative to suggest names for offices situated 
in his State. The Constitution declares that "the President shall 
nominate, and by and with the advice and consent of the Senate 
appoint. ..." But by the necessities of the case, the Senate 
now nominates while the President gives his consent. This reversal 
of the constitutional intent has been further aided by the custom 
known as "Senatorial courtesy:" should the President seek to ig- 
nore the preference of a Senator for appointments in his State, the 
other Senators rally to the support of their colleague by refusing 



THE PRESIDENT 1 5 

their approval of the person favored by the President for the posi- 
tion in question. Numerous Presidents have attempted with vary- 
ing degrees of success to break down the custom but with each 
administration it has been re-asserted. The President can often 
overcome opposition or force a compromise by curtailing the num- 
ber of appointments which would otherwise have been allotted to 
the hostile Senator, especially for positions in Washington or in 
the foreign service. Neither the President nor any individual 
Senator has anything to gain by an open quarrel. Senatorial cour- 
tesy is therefore brought to bear only in the most serious cases of 
difference between President and Senate, or in instances where 
many Senators are displeased with the nominations desired by the 
President. 

The question is often asked why should the Senate possess the 
power to approve or reject appointments? The original reason was 
the belief that the President needed' the advice of a mature body 
of men, also the desire to place a limit or check upon his authority 
so that he could not set up a despotic power in the government; in 
short the theory of " checks and balances." But the plan has not 
worked out in practice as it was intended. It is generally conceded 
that the Senate should not interfere with appointments to the 
President's Cabinet; he is therefore given a free choice of his ad- 
visers. Also in appointments to positions located in Washington 
the President can usually exercise great freedom, since the very 
multitude of candidates from different States enables him to play off 
different claimants against each other; he must not ignore any one 
State but he is not limited to any group of men for his choice. The 
same is true of the diplomatic and consular service abroad; he must 
not openly antagonize any powerful faction but he is not compelled 
to accept any one candidate. There remain for consideration those 
Federal places which are situated in the States. The majority of 
these are subject to civil service appointment rules, but, where they 
are not, the requirement of Senatorial approval acts as a practical 
and real restriction of the appointing power. The more important 
of these places, the customs and revenue collectors, postmasters 
and judges, are filled on suggestion of the Senators, the less im- 
portant on that of the Representatives from the district in which 
the particular office is located. Here again the President must not 
select a man who is openly hostile to the local leaders; he does not 
even suggest men as a rule, but he may require a number of names 
to be presented and exercise his preference. Generally a person 
who is strongly objected to by a Senator will not be nominated 
by the President. Hie strongest argument in favor oi the Senatorial 
approval plan is that the President is induced to consult those 
who are best equipped to give information on political questions, 
viz., those whom the people have chosen as their representatives 
in the Federal legislature, their Senators and Representatives. 
The President cannot carry out his plans and policies without the 



1 6 THE NEW AMERICAN GOVERNMENT 

aid of a party organization, and an appointment policy which would 
weaken that organization or alienate from the President the leaders 
of the party must interfere with the success of his administration. 
These theoretical considerations are far outweighed by the prac- 
tical record which "the advice and consent of the Senate" leaves 
in its trail. The President must peddle out his appointments to 
the chief supporters of each Senator or he must undertake a wear- 
ing and harassing struggle to urge the Senators to submit men 
really qualified for the service. No defender of the system by any 
flight of imagination could contend that it prevents the President 
from making bad appointments, nor that it gives the public service 
as efficient a class of men as the President himself would select by 
a merit principle with service records. 1 Nor can anyone conversant 
with our Presidential history claim that if this restraint of Sena- 
torial consent were removed, the Executive would immediately 
embark upon a career of personal aggrandizement and establish a 
dictatorship. Are we to be saved from a czardom by forcing the 
President to dole and peddle out his appointments to party leaders? 
But if this danger does not exist, why guard against it? Count- 
less instances are known in which men abundantly qualified for a 
national post of importance, who were acceptable to the President, 
have been quietly dropped out of consideration because they were 
for some reason not congenial to a Senator from their State. Even 
the judiciary itself has not been spared this humiliating test of 
" fitness" for appointment. On one occasion, a vacancy arising in 
a Federal judgeship, the Senator whose privilege it was to "sug- 
gest" men for the post, selected one whose local reputation was 
so unsavory that a deputation of members of the bar from the 
district immediately waited upon the President and urged him 
strongly to investigate with care before committing himself to the 
candidate proposed. The President was plainly desirous of secur- 
ing a well qualified man but he also felt impelled to hold the power- 
ful friendship of the Senator in question. The latter influence 
finally weighed down the scale, although one member of the depu- 
tation ventured the prophecy that the candidate if chosen would 
be impeached within a year. The nomination was made despite 
all protests; it was confirmed by the Senate and the new judge 
outlasted the prediction by six months. Senatorial control of ap- 
pointments, in practice, is not a safeguard but a blight upon execu- 
tive efficiency. No one to-day would seriously contend that it 
produces better civil officials. 

II. Legislation. — To understand the true importance of the ap- 
pointing power we must observe its bearing on the making of laws. 
Supposedly the President's influence on legislation was restricted 
to the veto power and the "information on the state of the Union" 
which he furnishes to Congress in messages from time to time 
in pursuance of Article II, Section 3, but in practice these latter 
1 See the Chapter on The Civil Service. 



THE PRESIDENT 1 7 

activities are seldom of importance. A frequent use of the veto 
power shows a lack of sympathy between the chief Executive and 
his party leaders in Congress, since the latter, if in accord with the 
President, would not allow the passage of measures to which he 
was known to be opposed. But in order to control legislation in a 
positive way the President must exert some influence on the intro- 
duction of bills and on the actual provisions placed in them. Pre- 
cisely this influence is offered by the distribution of appointments 
among Senators and Representatives. The President does not 
barter executive appointments for Congressional votes, but his 
appointing power has grown to such an extent as to place his wishes 
in a strong light before the legislature. We should recall that the 
Senator or Representative is constantly harassed for appointments 
by his constituents. His strength at home is too often measured 
by the "patronage" secured from the appointing power. If he 
loses this patronage one of his mainstays is gone. On the other 
hand, the President is held responsible by the country at large for 
the fulfillment of a certain political program, including legislation. 
He must get results. Since he cannot by any possibility make a 
personal selection among the many candidates for appointment he 
follows the logical and practical course of consulting the Senators 
and Representatives of his party; those who are friendly to him 
politically and personally will naturally be consulted more than 
others. The circle of his friends in the Congress is extended and 
strengthened by the appointing power, and strong support for his 
legislative program arises as a matter of course. It is noticeable 
that much prestige is now accorded those members who are said 
"to voice the opinions of the administration." As abroad certain 
European newspapers command general attention as being "in- 
spired" by their respective governments, so at home the utterances 
of certain Congressmen on special topics are known to "reflect" 
the views of the White House. The desire to be known as an ex- 
ponent or at least a supporter of executive wishes and opinions 
shows to what an extent legislation has fallen under the influence 
of the President. It may be asked, — is this in accordance with the 
spirit of the Constitution? Decidedly it is not. Yet it has become 
a means of securing greater harmony of action between the legis- 
lative and executive branches and in this way it has proven an in- 
valuable aid to the latter department in bringing about the pas- 
sage of many useful laws. In this development the President's 
Cabinet advisers have shared in his growing powers. The old 
notion of a splendid isolation for the executive official has vanished; 
in its place has come the idea that to be a successful Cabinet secre- 
tary, one must influence legislation as well as manage his depart- 
ment. 

Not a session passes without the heads of several important de- 
partments appearing before legislative committees of each House 
not only to give information, but actively to urge or oppose pend- 



1 8 THE NEW AMERICAN GOVERNMENT 

ing measures. Nor has the evolution halted at this point; forced 
on by the pressure of necessity, the executive officials have presumed 
to draft bills dealing with the field covered by their departments 
and have had these measures introduced in Congress and in many 
instances passed, by the aid of the » members friendly to the ad- 
ministration. To those who have not closely watched this signifi- 
cant growth, the extent which it has already reached will be 
surprising. The President has always exerted much influence in 
law-making, but the legislative era which opened with President Mc- 
Kinley's first term must be considered one of the turning points 
in the history of the American Executive. 

If we glance over the remarkable series of constructive laws- 
passed during this period, the measures which stand out most 
prominently, if not by their merits, at least because of their im- 
portance, are those dealing with the Hawaiian, Porto Rican and 
Philippine governments, our relations to Cuba, irrigation, army 
re-organization, the regulation of corporations, the railway laws, 
the creation of departments of Commerce and Labor, the provision 
for an Isthmian Canal, for a permanent Census Bureau, for a 
permanent rural free mail delivery, the parcels post, the postal 
savings bank, the creation of great forest reservations, the inspec- - 
tions of meats, foods and drugs, the income and corporation taxes, 
the conservation laws, the tariff of 19 13, the currency act and a host 
of others. Of this great array of constructive measures all were 
either prepared in detail by executive officials or in closest consulta- 
tion with them. Can any more convincing proof be asked of the 
role played by the Executive in legislation? 

Executive Supremacy. — The President's influence on law-making 
has too long been thought to be simply a result of the aggressive 
personality of individual Presidents. If this were correct we should 
find some Presidents using their influence while others re fr " ;r >ed. 
But can any refrain? Executive power and "usurpation" are sup- 
posed to have reached their climax in what we call the " reign" of 
Theodore Roosevelt, but the real test came with his successor's ad- 
ministration. The latter was well known to entertain a decidedly 
conservative, reactionary view of the legislative function, as be- 
longing to Congress alone. President Taft's judicial training and 
habit of mind, his temperament and inclination, all pointed con- 
clusively to an old-time administration on conventional lines, in 
which Congress would make the laws and the President should 
execute them. But, suddenly confronted at the close of his first 
year in office, by a long session of Congress in which nothing had 
yet been done, he cast tradition, judicial habit and personal prefer- 
ence to the winds and in the memorable closing month of the ses- 
sion of 1909-10 he forced through every important measure, save 
one, that had been recommended in his annual message. No such 
array of " inspired" or dictated legislation had ever issued from the 
halls of Congress as that passed in June, 19 10. And it is significant 



THE PRESIDENT 1 9 

that the President carried out his program because it was based 
upon a strong public opinion. Every law so passed had been a 
party issue in the previous election. Executive leadership does 
not mean the arbitrary use of one-man power but rather the 
President's determined insistence on the passage of popular bills. 
Nor may we believe that the mass of Congressional legislation is 
guided by the Executive; his intervention is felt only in those laws 
which are of prime importance. President Wilson when a teacher 
had written a book, Congressional Government, -designed to show 
that Congress had established its supremacy in the national govern- 
ment, but his first official act was to call Congress in session and 
hold it for over a year, meanwhile forcing through a tariff, an in- 
come tax, a currency law, canal tolls and corporation acts. 

This legislative activity of the Executive has always aroused 
strong protests. Many older members of Congress, particularly 
of the Senate, feel that a serious violation of the spirit of our Con- 
stitution has occurred, but the inevitableness of the change is 
slowly forcing itself upon us. In order to see how far we have 
travelled we need only review the last great public controversy 
on this question which was waged during the second session of the 
57th Congress, when the Fowler currency bill was brought up 
before the Senate for action. A member of the House had tried to 
help the passage of the bill in the Senate, and wrote to Senator 
Hoar of Massachusetts stating that the measure had the approval 
of the President, the Secretary of the Treasury, the Comptroller 
of the Currency and the Director of the Mint. The Senator was 
so shocked that he at once arose and declared it "contrary to the 
privileges of the Senate to have the opinion of the President of the 
United States stated in legislation. The House of Commons or 
the House of Lords always resented it and have in history done 
so for a great many years, when that statement is made about the 
Crown." He also criticized sharply the growing custom of holding 
conferences at the White House in which Senators arrange "with 
the President of the United States what the Senate shall do about 
a treaty or about a trust bill." The press comments on this speech 
were remarkable, showing as they did, the extent to which the 
leaders of public opinion sided with the President over ten years 
ago in what is undoubtedly a serious encroachment upon Legisla- 
tive prerogatives. Among others a former Cabinet officer, Charles 
Emory Smith, to whose view much importance was attached, 
showed clearly the character and tendency of the present system. 
Writing in the Saturday Evening Post of February 21, 1903, Mr. 
Smith who was a Republican newspaper editor said: —"Senator 
Hoar's remonstrance against the intrusion of Presidential authority 
and influence into the activity and legislation of Congress funis 
theoretical assent and practical rejection. The venerable Massa- 
chusetts statesman is a Senator of the old school. He has great 
reverence for the traditions of the lathers, for the fundamental 



20 THE NEW AMERICAN GOVERNMENT 

principles of our political system, and for the constitutional division 
and boundaries of authority. The President, according to his view, 
is to communicate with Congress by message; he is to pass upon 
bills by signing or vetoing them when they come regularly before 
him in due process; Congress is to legislate without his interference 
except through his public recommendations; and conference at the 
White House tc arrange what shall be done at the Capitol, and 
announcements that this or that measure is an Administration 
measure, are equally objectionable. 

" All this Senator Hoar found occasion to utter in very plain terms. 
'There is a constitutional method,' he said, 'by which the President 
conveys his approbation or disapproval of bills. It is nobody's 
business to be arranging with the President what the Senate shall 
do. We are an independent body.' This was indeed a sharp lecture 
both to the President and to the Senate. And the general judgment 
found expression, when, upon its conclusion, Senator Spooner rose 
and said: 'Mr. President, the Senator from Massachusetts is ab- 
solutely right, of course. I move that the Senate do now adjourn.' 
That was the only rejoinder. Theoretically right, but not worth 
answering. 

" Senator Spooner's suggestive response reflects the truth. Sena- 
tor Hoar's position is technically correct, but practically erroneous. 
It goes back to the original constructive division of powers and 
overlooks the development of actual conditions. The real working 
of our political system has changed in this as in many other ways 
without any change in the text of the Constitution. The President 
is not merely the Executive but the Premier of the Government and 
the leader of his party. If he would win either administrative or 
political success he must impress himself on Congress and mold its 
action. The President who failed to do this would discredit him- 
self and imperil his party. Once in a century comes a Henry Clay 
who from his place in the Senate dominates his party in Congress 
and in the country; but it is only at the rarest intervals that such 
an over-towering Congressional leader appears, and generally the 
real leadership must fall to the President." 

Senator Cummins has recently attempted in vain to stem the 
rising tide of executive authority by asking that the President's 
power of appointment be limited or diverted in such a way as to 
strip him of his control over legislation but it is doubtful if any of 
the leading parties would be willing to consider this plan seriously, 
in view of the weakness which would immediately develop in the 
party's legislative program. 1 

1 In an article entitled "The President's Influence a Menace," The Independent, 
June i, 1914, Senator Cummins says: 

"The President passed the tariff law. The President passed the currency bill. 
The President is now summoning all his power to compel Congress to repeal 
so much of the Panama Canal Act as exempts our coastwise trade from the 
payment of tolls for passage through the waterway. It is highly probable that 
he will succeed in accomplishing his purpose , for while thsre is some independ- 



THE PRESIDENT 21 

It has frequently been proposed that the President and the heads 
of departments be given the right to appear in either House and 
advocate measures of general importance. Such a recommendation 
was made by a Senate committee in 1881. It has also been sug- 
gested that the various underground means of communication be- 
tween inferior executive officers and the Congress should be aban- 
doned by concentrating them in the hands of department heads, 
after the English fashion. If these changes were made the President 
and his Cabinet members would have a still stronger means of 
choosing essential measures out of the mass of legislation, holding 
them up before Congress and the people and focusing public atten- 
tion upon them. At the same time it would become impossible for 
petty officials to lobby secretly for their personal benefit and the 
advantage of their own little offices. This later practice has be- 
come so general as to disorganize some of the departments and re- 
lax their discipline. The change would have the effect of forcing 
out into the open the relations between executive and legislative 
departments and giving legal recognition to the present influence 
of the Executive in law-making. 

Growing Importance of our Foreign Policy. — As the foreign rela- 
tions of the United States expand there is a notable increase in the 
number of affairs which require the constant every-day attention 
of the administrative authorities. There are more Americans 
travelling and living abroad than ever before, and when they fall 
into difficulty they appeal to our diplomatic representative. There 
are new inventions and new trade conditions arising on which our 
consuls should report to the home government for the benefit of 
American business men. There may be a boycott against American 
goods in China which is injuring our manufacturers, or a rumored 
government discrimination against American products elsewhere, 
ence still left in the Democratic majority, it is not strong enough to resist the 
power of the presidential office. (The Exemption Repeal Act was passed in 
June 1914, in slightly amended form.) 

"Congress will never again be as free as it should be until we devise some 
other plan for the appointment of the officers and agents of the Government who 
are to carry into effect the laws which Congress enacts. The patronage of any 
President has become a menace to legislative independence and gives the execu- 
tive a power over legislation that no executive ought to possess. 

"The Constitution gives to the President the sole authority to appoint the 
officers who are to administer federal affairs. Originally this was not considered 
a serious matter. The people who adopted the Constitution had no concept ion 
of our future growth and development. The mere physical transformation of a 
hundred and twenty-five years bewilders the most comprehensive mind, but 
multiplied population, wealth and commerce do not half tell the story of the 
increased activities and powers of the Government. I cannot even suggest the 
expansion which this generation has witnessed. It has not only added and added 
again to the number of officers and employees, but has in geometrical ratio 
added to their importance and influence in the lives of the people. With the 
exception of minor employee?, the President selects all these aides, ami every 
member of Congress, for reasons which need not be named, is highly concerned 
in the selections that are made. To use the familiar term, it is patronage, and it 
has become a menace to the lice action of the Congress." 



22 THE NEW AMERICAN GOVERNMENT 

which action must then be officially investigated. An American 
ship may have been attacked in foreign waters by marauders. A 
German-American returning to the Vaterland may have been 
arrested and compelled to serve in the army, our Secretary of State 
may try to secure the open door for trade in China, etc. Our capi- 
tal and our business interests at any moment involve us in such 
difficulties as we have already observed in Mexico, Europe or 
Central America. These are all matters involving, not the adop- 
tion of a treaty, nor the approval of the Senate, but the constant 
watchfulness and care of the Executive. In this way the President 
has gained in power and influence by the recent growth of our 
foreign relations. The strongest reason for this is the increase of 
our export trade due to the expansion of home manufactures. So 
long as the United States remained an importing nation her foreign 
policy was extremely limited, and might well be summed up in the 
familiar precept of George Washington, to avoid entangling al- 
liances with foreign powers; but the growth of American exports 
has involved the nation in a new set of relations abroad. We are 
gradually learning to exchange the distant and arrogant attitude 
of the buyer for the more suave and courteous manners of the 
seller. We have considerably more to lose in our foreign relations 
than at any time since the Civil War, and we have also incom- 
parably more to gain. The revolutions of our neighbors are ceasing 
to be matters of indifference to us, the closing of Chinese ports to 
our cotton goods or the indirect restriction of our markets under 
one pretext or another by the nations controlling various sections 
of Asiatic territory, is a matter of immediate concern, while the 
protection of our citizens abroad is of growing importance and 
difficulty. 

All these increasing points of contact with foreign peoples have 
given the basis for a new foreign policy. We want our government 
to play a more active part in the council of nations and to be pre- 
pared to protect and foster our interests in every quarter of the 
globe. This change in our program tends distinctly toward a 
strengthening of that branch of the government which is always in 
session, const?jitly on the alert and ready to act at a moment's 
notice. It cannot be doubted that it was the President who origi- 
nated all the important moves in our disagreement with Mexico. 
If we take the history of the Monroe doctrine, it will be seen that 
this declaration cf opinion and intention contained in a Presidential 
message of nearly a century ago, has placed the Executive in a posi- 
tion of unusual prominence and influence and that the commercial 
forces which have increased the importance of the doctrine have 
by the same fact exalted the Presidential power. The Senate, 
being a deliberative council, is unable to enter into all those minute 
yet important developments which form the greater part of the 
daily conduct of affairs; the President and his officials are therefore 
obliged to undertake this growing side of governmental activity. 



THE PRESIDENT 2$ 

Foreign Policy. — The management of our foreign relations falls 
naturally under five general heads, each possessing certain peculiar 
and interesting features. 1 

A. Appointment of (a) diplomatic and (b) consular representa- 
tives. 

B. Treaty-making. 

C. War power. 

D. Recognition of new nations claiming independence, or of 
hostile factions claiming control in a foreign government. 

E. General negotiations and communications with foreign 
powers. 

Modern conditions have tended to throw practically all of these 
powers more and more into the control of the President. 

A. The Diplomatic Service. — The United States has not yet 
adopted the policy long practiced by other nations of establishing 
a professional diplomatic corps, with members trained by years of 
experience. For our foreign business we have availed ourselves 
of the services of prominent merchants, lawyers, journalists and 
others. While it is by no means certain that we should improve 
matters by establishing a permanent, professional corps in all 
branches of the staff, it does seem advisable to retain experienced 
men longer in their posts and to make the service permanent for 
those who show conspicuous ability. The diplomatic service is 
composed of various grades, the order being Ambassador, Minister 
Plenipotentiary and Minister Resident. There are only eleven 
embassies, one to each of the most important powers with whom 
we have dealings, viz., England, Russia, Germany, France, Italy, 
Austria-Hungary, Mexico, Japan, Spain, Turkey, and Brazil, 
Ministers Plenipotentiary or Resident being sent to other countries. 
Seven of the eleven Ambassadors were changed during 1913, and 
twenty-two of the thirty-five Ministers. At each embassy there 
are a number of secretaries and attaches. The salaries of Ambas- 
sadors vary from $12,000 to $17,000, of Ministers from $4,000 to 
$12,000, but large as these amounts appear, they are by no means 
sufficient to cover the expenses of the positions. In fact so inade- 
quate is the salary, that practically all our representatives abroad 
have to devote their private funds to the support of theii positions; 
it follows that only wealthy men can retain these posts for any 
lergth of time. A heavy item of expenditure is the rental of the 
embassy, — other nations own their official residences and offices 

1 The President's constitutional control over foreign affairs rests upon those 
clauses of Sections 2 and 3 of Article 2, authorizing him, first, to make treaties 
by and with the advice of the Senate, provided two-thirds of the Senators pres- 
ent concur; second, to nominate, and by and with the advice and consent of (he 
Senate, appoint ambassadors, other public ministers and consuls; and third, 
to receive ambassadors and other public ministers. The tirst and second of 
these clauses form a. basis for the additional power of conducting negotiations 
on all subjects affecting international relations even though such negotiations 
are not intended to lead to a treaty or agreement. 



24 THE NEW AMERICAN GOVERNMENT 

and thereby relieve their representatives of this expense. A more 
liberal policy by our government would make it possible to appoint 
men of less wealth when this seemed desirable. 

The control exerted by the President over these diplomatic ap- 
pointments is considerable. As we have already seen, the require- 
ment of Senatorial approval prevents the appointment of anyone 
who is strongly opposed by the political leaders of his State. But 
aside from this, the President has almost a free choice. 

The Consular Service. — In the consular service the President's 
freedom is usually limited by the urgent practical necessity of 
providing for political workers. The grades in this service are, 
Consul-General, Consul, and Consular Agent, the salaries of the 
241 Consuls ranging from $2,000 to $9,000, those of the 57 Consuls- 
General from $3,000 to $12,000. The 224 Agents are paid by fees. 
If, as has been suggested, these positions were placed under civil 
service rules, a permanent and professional body of trained consular 
experts would be established. The principal duties are to report 
on opportunities for extension of American trade abroad and pro- 
tect American citizens and their interests when threatened by 
danger. A large number of appointees to these places are news- 
paper men, whose journalistic experience stands them in good stead 
in securing commercial information of value, and it is probably 
this fact that has made our consular service so efficient, in spite of 
the political method of recruiting its members. By a plan of ap- 
pointment recently adopted, the higher positions are to be rilled 
as a rule by promotion, and civil service examinations are held for 
appointment to the office of Consular Agent. 

B. Treaties. — The constitutional provision requiring the assent 
of two-thirds of the Senators present, for the approval of any treaty 
negotiated by the President, lays upon the latter an effective re- 
striction in his conduct of foreign affairs. The Senate uses its con- 
trolling power freely, and many of the treaties negotiated fail of 
Senatorial approval. Notable in recent years has been the failure 
of the highly important and valuable treaties negotiated by Mr. 
Kasson, President McKinley's Reciprocity Commissioner, the 
treaty for the purchase of the Danish West Indies and the Arbitra- 
tion agreement with Great Britain. The Senate has always looked 
upon itself as a co-ordinate part of the treaty-making machinery; 
it has not restricted its activity to approving or rejecting the pro- 
posals of the President and his Secretary of State but has often 
proceeded to make a new draft of treaty for transmission to the 
foreign government through the executive offices. Realizing the 
independence of the Senate in this respect, it has become the cus- 
tom of the Executive to consult the chairman and leading members 
of the Senate Committee on Foreign Relations regarding any im- 
portant steps, and to keep them well informed of the progress of 
negotiations on treaties. 

The original grounds for requiring a majority of two-thirds for 



THE PRESIDENT 25 

the approval of treaties were strong. Since a treaty was a binding 
agreement involving the good faith of the national government, it 
was of the highest importance that the Executive should have the 
advice and co-operation of the more conservative branch of the 
legislature, which would not lightly enter into such agreements 
without sufficient reasons. All possible precautions were thereby 
taken against a vacillating or impetuous foreign policy. The ar- 
rangement worked well, although few instances can be recorded in 
which the Executive might be accused of hasty action. In later 
years, however, the needs of the people have changed considerably 
and the treaty-making power must be considered from a different 
standpoint. Since we are obliged to enter more frequently into 
agreements with foreign peoples we must regard our treaty-making 
machinery more with a view to producing results than of merely 
preventing hasty action. It is hard to believe that our Executive is 
to be less trusted than those of other nations. In no other great 
world power is a majority of two-thirds of the upper house required 
for the approval of international agreements. This requirement 
together with the right of unlimited debate in the upper house 
seems to give to a small group of men too much power to delay 
and block action on important measures and as it becomes more 
necessary to enter into trade arrangements with other countries 
we require a more effective method of treaty-making. To this end 
the suggestion has been made that treaties be approved by a simple 
majority of both Houses. This would be an easier method than the 
present two-thirds rule in the Senate and yet it would fully safe- 
guard all interests concerned. 

Another limitation of the President's treaty-making authority 
has arisen in the well-known claim of the House of Representatives 
to the approval or rejection of treaties. This claim rests on two 
bases: first, the right of the House to take part in appropriations. 
Since all important treaties require an appropriation for their execu- 
tion, this claim practically amounts to the demand for a part in all 
international agreements. Second, it is contended that no treaty 
may amend the customs tariff and tax laws of the United States 
without the consent of the House of Representatives since the latter 
is peculiarly the popular representative assembly and has been 
given both by custom and by the Constitution a special care over 
taxation. The Senate has not formally admitted this clain but in 
order to get funds it has placated the House by passing appropria- 
tion laws to carry out the treaties adopted. The President too has 
been obliged to keep in touch with the House Committee on Foreign 
Relations, and where an appropriation is necessary the concurrence 
of the House is asked. 

Treaties and State Laws. —The occasional conflict of the Federal 
treaty power with the Legislative powers of the States raises the 
question: — Can the United States government make a treaty which 
conflicts with State laws? The necessity of such treaties is increas- 



2 6 THE NEW AMERICAN GOVERNMENT 

ing with the commercial expansion of the country. It has been 
provided by treaty that the property of deceased foreigners located 
in the United States shall be administered in a certain way. Also, 
that citizens of certain nations shall be free to acquire real estate 
within the United States. Both of these conflict with the laws of 
some of the States, and authorities are divided on the question. 
(See Geofroy v. Riggs, 133 U. S. 258; Baldwin v. Franks, 120 U. S. 
678.) In 1907 and 1908 a number of Japanese children living in 
California were excluded from the public schools or were forced to 
attend separate schools. The Japanese government maintained 
that this was a violation of its treaty rights and the same constitu- 
tional question arose in acute form. The President maintained that 
the Federal Government had the authority to enforce an equal 
treatment of the Japanese with that accorded other persons in 
the school system, but this claim was not pressed because of the 
aroused public sentiment throughout California. Eventually a 
compromise was effected, leaving the constitutional question un- 
decided. The same problem has often taken a serious turn in the 
failure of the State governments to protect foreign subjects from 
mob violence; the Federal authorities have then been obliged to 
pay indemnities to the nations concerned while still remaining in 
the humiliating position of political impotence. It is of the essence 
of a treaty to offer protection and full enjoyment of civil rights to 
the subjects of a nation in return for similar privileges granted to 
bur citizens, but what do these rights avail if our Federal Govern- 
ment must plead with the States to protect them? Has the national 
authority no power to step in where necessary and compel the 
observance of its treaties regardless of local laws and feeling? 
On the other hand, can it by treaty repeal the constitutional 
legislation of a State, so far as that legislation applies to for- 
eigners? This is one of the unsettled questions of our Constitu- 
tion. It may be pointed out that if our foreign relations are to 
expand and to rest upon a foundation of mutual confidence, we 
must allow the Federal Government to use its treaty power with- 
out such excessive restrictions. Certainly we should treat with 
scant respect a foreign government which answered our demand 
for the full protection of Americans within its borders by pleading 
that it was a Federal system, and that its component States, for 
political reasons must not be interfered with by the national au- 
thority. Undoubtedly we have the constitutional authority to 
protect the lives of aliens but we never make use of it, nor have we 
ever established how far the property rights of foreigners may be 
regulated by treaty or Congressional act. The laws of several 
Pacific slope States still deny the right of land-owning to any aliens 
who cannot become naturalized and this violation of our Japanese 
and Chinese treaties has never been settled because the national 
authorities want to avoid serious conflicts with the States. Doubt- 
less the State acts are invalid because of the conflict. 



THE PRESIDENT 27 

C. Declaration of War. — Article I, Section 8 of the Constitution, 
gives to Congress the power to declare war. On two of the occa- 
sions when such a declaration has been made, viz., against England 
and Spain respectively, there has been an intense popular excite- 
ment which drove the legislature to take such a step, yet it is an 
interesting fact that practically all the more important measures, 
leading to an outbreak of hostilities or determining the exact mo- 
ment at which they should commence, were either directly taken 
by the President or inspired by him. The American President 
may not declare war but he may lead the country to the verge of 
hostilities or even into a situation where war is inevitable, as, on 
the other hand, he may also prevent a conflict. The severe hos- 
tilities between England and France during Washington's second 
administration were drawing us rapidly into a combat with the 
former power, which was prevented largely by the President'?/ 
efforts; the arrogance of the French subsequently brought on a 
similar danger with that country which was again averted by execu- 
tive influence. The strong declaration of President Cleveland in 
favor of arbitration of the boundary dispute between Venezuela 
and England placed the United States and Great Britain unex- 
pectedly in a position where one or the other must openly recede 
from its announced intention, if a conflict was to be averted. The 
case was finally settled by Great Britain's conciliatory agreement to 
arbitrate. The action of the President in the Mexican imbroglio, 
and its consequences, are too recent to require comment. The 
policy of the Executive in all these cases has been decisive. While 
there is in every country a strong under-current of national pride 
and " jingoism" which may be relied on by the President in an ag- 
gressive foreign policy, and while this knowledge might at some 
time lead the Executive to hasty action, yet our Presidents have 
usually acted with conservatism. There is no other official body 
in the government to whom this power over foreign relations might 
be entrusted. The only alternative would be to vest this control 
in a Congressional committee — an arrangement which during the 
Revolution proved most unsatisfactory and even dangerous. Con- 
gress at critical moments is likely to be even more radical than the 
President and his advisers. In the Spanish War Presidents Cleve- 
land and McKinley kept the national legislature from a declaration 
of hostilities for more than two years before final action was taken. 
From the very nature of the control over foreign relations it follows 
that either Congress or the President must sooner or later gain the 
upper hand in the exercise of such a power. This advantage usually 
rests with the President because he enjoys the initiative in propos- 
ing, interpreting and executing our international treaties. 

D. Recognition of Foreign Powers. — The Constitution framcrs 
could not foresee the many delicate questions touching the recogni- 
tion of the independence of new republics which would be thrust 
upon our government in its management of foreign affairs; had 



28 THE NEW AMERICAN GOVERNMENT * 

they done so they would probably have defined the power of recog- 
nition more clearly. Congress has repeatedly undertaken to exer- 
cise this power, sometimes in conflict with the President, but a 
final and definite decision of the matter has never been reached. In 
practice the victory has thus far been with the President. In the 
Cuban case an excited popular opinion throughout the United States 
seemed strongly in favor of recognizing not only the rights of 
Cuba as a belligerent, in its struggle against the Spanish yoke, but 
also of recognizing Cuban independence. President Cleveland, 
knowing that the United States was unprepared for war, with his 
characteristic independence, threw all his influence against action 
by Congress, and his Attorney General in an opinion which com- 
manded general respect declared that the Constitution conferred 
this power upon the President when it authorized Mm in Article II, 
Section III, to receive ambassadors and other public ministers. 
The Congressional leaders allowed the matter to rest here, the Presi- 
dent refused to receive as public ministers any deputation from 
Cuba and the formal recognition of Cuban independence was put 
aside until the United States was enabled by force of arms to com- 
pel the withdrawal of Spanish sovereignty. During the Boer War 
with England a Boer delegation was also sent to Washington to 
secure a formal recognition of the struggling republics by the United 
States. It was attempted to obtain either a recognition of the in- 
dependence of the Transvaal and Orange River State, or failing 
that, a declaration that the United States would accord them the 
rights of belligerents in their conflicts with England so that they 
might make purchases of supplies and material in America. The 
President, however, only consented to receive them informally and 
not as the representatives of foreign powers. But the most strik- 
ing illustration of the broad influence of this power is offered by our 
relations to Mexico. / The refusal to recognize General Huerta led 
to the recall of the Mexican charge and of our acting ambassador. 
The recall of our ambassador created a vacancy in our embassy 
which could not be filled without recognizing Huerta, since we 
must send our ambassador with credentials addressed to someone 
in authority and Huerta was the only authority. When the Car- 
ranza revolution grew to large proportions, its leader applied to the 
United States repeatedly, demanding recognition as a representa- 
tive of the constitutional authority of the nation. It was for this 
reason that the insurgents took the name of Constitutionalists, 
claiming to re-establish legal government under the constitution, 
which had been overthrown by Huerta. They too were refused rec- 
ognition by the President pending the final outcome of the war. 
Special agents of the United States communicated with and visited 
both factions from time to time but not as accredited diplomatic 
representatives. We were therefore carrying on active negotiations 
with a people over whom we recognized no legal head. 
E, Negotiations and Communications with Foreign Powers.— 



THE PRESIDENT 29 

This is the every-day work of our international relations and it is 
the part in which the President enjoys the widest freedom from 
restraint. Aside from the long and complex negotiations incident 
to treaties, there is the constant interchange of communications 
necessary for the protection and advancement of American in- 
terests under the treaties already made and under the general 
international law of custom. Whether it be the exacting of an 
" Oriental promise" regarding Manchurian trade, the presentation 
at Constantinople of a bill of damages for the destruction of Amer- 
ican property in Turkey, the statement of our opinion and interest 
in European methods of collecting debts in Venezuela, our concern 
at the treatment of Jewish subjects in Russia or our demands for 
greater safety for our citizens in Mexico — the President, through 
his Secretary of State, fixes the substance, the form, the time and 
the tone of the communication and thereby determines the official 
attitude of the United States. In so doing he commits the nation 
to a policy from which the legislative department can hardly depart 
without provoking a serious political conflict at home or diminishing 
our respect abroad. The President feels it expedient, if not obliga- 
tory, to consult with some of the party leaders before taking a 
positive stand on the most important international questions. As 
the treaty-making power is legislative in character, the President's 
power of communication is also the administrative and interpreta- 
tive side of our foreign relations. 

A Constructive Foreign Policy. — We are slowly groping our way 
towards a much needed definite foreign policy. Heretofore our 
foreign relations have been determined entirely by the whim of the 
moment but without any fixed, settled principles of action. We 
have had no definite aims in view nor have we pursued a consistent 
course toward any of the nations with whom we were in constant 
contact. While this has apparently possessed advantages in freeing 
us from any alliances, it has not left us free from entanglements 
arising from the very nature of our foreign problems. Towards 
the continent of Europe we have always showed a desire to avoid 
friendships. In China and Asia generally we have, at various 
times, attempted to extend our markets in a spasmodic way but 
have never followed up our own announcements of programs and 
principles. Towards the Central and South American peoples we 
have shown a desire to be friendly and to protect them from Euro- 
pean aggression and even at times from domestic chaos and dis- 
order, but to this day, no foreign nation, whether in Europe, Asia or 
South America, is aware of any definite, positive principles guiding 
our course of action, upon which they may rely with confidence. 

The Hon. W. Morgan Sinister in an address before the American 
Academy of Political and Social Science ' has set forth certain 
essential factors of a foreign policy which well deserve considera- 
tion. These briefly summarized are: 

1 Sec Annals of American Academy, July, 1914. 



30 THE NEW AMERICAN GOVERNMENT 

A. It must represent the collective business and moral sentiment 
of the people, — since all the foreign negotiations and treaties of our 
government are discussed with the greatest freedom in the press, 
by public societies, and in open debate in Congress. Our authori- 
ties would not consider for a moment the enactment of a treaty 
which was opposed by a strong public sentiment. Because we are 
a popular government, we must also reckon with the prevailing 
moral tone of our people in national affairs. It is safe to say that 
no notoriously dishonest or immoral policy could long maintain 
the popular support. 

B. A constructive foreign policy must also have some permanence 
and continuity, — if it is to be a guide to us in dealing with other 
nations and to other nations in their policy toward us, it must be 
non-partisan and must be consistently followed within certain 
general limits by administrations of all parties. This involves some 
change of our sentiment of patriotism from mere military en- 
thusiasm to the development of a high ideal of national honor and 
international justice. 

C. It follows from "A" that we must scrupulously respect the 
sovereignty of small nations and 

D. Observe with greatest care the exact spirit of our treaties, 
avoiding even the appearance of neglect or sharp practice in inter- 
preting our obligations toward other peoples. 

E. And our policy should take heed of our peculiar position in 
the Western Hemisphere, — it should build with greatest care a 
feeling of confidence among the peoples of South and Central 
America. 

F. To this end our intervention in their affairs should be con- 
fined to a minimum and should occur only as a last resort for the 
protection of our interests, and we should avoid all permanent oc- 
cupation of their territory. 

G. Our foreign policy should be altruistic and generous but it 
should also have as one of its chief aims the promotion and protec- 
tion of American investments abroad. 

IV. General Enforcement of the Laws. — A similar change has 
taken place in the general executive authority of the President. 
In our early history when the government was limited in activity, 
we paid little attention to executive powers, because the making 
of the laws seemed all-important. The people fixed their attention 
upon the broader, more imposing and impressive aspects of the 
government, assuming that the executive work would prove a 
mere matter of detail. It was not until, by the gradual rise of 
manufactures and transportation, a wide and complex field of 
public regulation had developed, that the execution of the law 
began to stand on a par with the passing of bills, in the minds of 
the people. When the men of 1787 placed in Section 3, Article 2 
of the Constitution the clause "He shall take care that the laws be 
faithfully executed;" they doubtless considered that they had 



THE PRESIDENT 3 1 

clearly fixed the subordinate position of the Executive. The word 
"faithfully" is significant. It shows the President's intended role 
as the true and obedient administrator of the legislative will; and 
in the enforced separation between the two departments, the Presi- 
dent has done what he could to carry out this faithful execution of 
the laws. No more impressive instance can be given than that of 
Andrew Johnson in 1866, attempting against his own judgment 
to enforce the pernicious Reconstruction Acts, which Congress had 
passed over his veto. But since Johnson's time a new era has set 
in, and the President's political duty is now not only to enforce the 
laws but to see that good laws are enacted. 

Executive Discretion. — Thirty years ago Congress enacted all its 
laws in detail, prescribing with jealous care the most minute punc- 
tilio of the subject-matter; to-day Congress is too busy to go into 
details, — it accordingly passes what we might call outline acts, 
which lay down certain fundamental principles and direct the 
Executive to apply these principles. The President is free to choose 
any reasonable means in order to carry out the aims of the act, — ■ 
he or his department heads issue ordinances or regulations covering 
all the details of legislation, and these ordinances are as binding 
as the law itself — they are in fact the law. At other times, Congress 
being for the moment unable to cope with a temporary emergency 
passes over to the President the authority to manage the situation 
for a limited time. Congress alone possesses the power to legislate 
for the dependencies and territories of the United States, but for 
three years the most important of these, the Philippines, were 
handed over to the President and his appointees on the Philippine 
Commission. When, by the Act of 1902, a new system of represen- 
tative government was provided for the Islands, the President, 
through his officials in the upper house of the Philippine Legisla- 
ture, was still left in a controlling position in the insular govern- 
ment. When the United States first secured the Panama Canal 
strip, the Senate drew up with painstaking care a complete system 
of government for that district, but after much discussion the plan 
was abandoned and the canal zone, like the Philippines, was handed 
over to the President's control with instructions to dig the canal 
as best he could. The Pension Office has for many years been the 
target of criticism because of the use which the Pension Commis- 
sioner makes of his discretionary powers in interpreting and en- 
forcing the law. Each Commissioner is known to favor a "strict " 
or " broad" interpretation of the acts; a former Commissioner 
issued an order on "Total Disability," declaring that a veteran 
upon reaching the age of seventy-two would be presumed to be 
incapacitated for active labor and would thereupon be placed upon 
the Total Disability list and given the full rate oi pension without 
further examination. The Postmaster-General in his department 
exercises undisputed sway, under the law, in the issue of regulations 
for the postal service. One of his Assistants even determines 



32 THE NEW AMERICAN GOVERNMENT 

whether certain postal matter is " fraudulent" or "obscene" and, 
as such, is to be excluded from the mails. The Secretary of the 
Treasury may issue or retire a large amount of United States bonds 
in a manner and at a time which will have important effects upon 
the business community; * he could formerly decide what grade of 
securities should be accepted as collateral for the issue of bank- 
notes. All these examples, which might be multiplied indefinitely, 
show that while Congress maintains its supremacy in fixing the 
broad general outlines of our policy, the substance and content of 
that policy are left, to a surprising extent to the Executive. Con- 
gress, with its growing duties, can only draft and supervise, the 
President and his assistants fill in the outline. Here then is the 
cause of the great discretionary power of the executive officer. It 
has produced a change in our administrative system towards greater 
elasticity and adaptability, two qualities that are especially 
needed at the present time. They are difficult to secure because 
the government being a non-competitive concern, naturally settles 
into a rut or routine of red tape and rigidity, which prevents 
it from keeping up with the new conditions unless constantly 
stimulated. 

If we compare the government business with that of any great 
commercial corporation we find that the corporation can measure 
its success by its profits at the end of the year. It has this simple 
test of results constantly before it. A defect in any part of the 
system is detected by the accounting department and is remedied 
immediately, before a further money loss occurs. Spurred on by 
this practical measure — financial results — the corporation is con- 
stantly revising its methods and plant, improving its personnel and 
developing new opportunities for profit. It is a live, elastic and 
rapidly changing organization whose very life depends upon its 
keeping up with new conditions and whose whole spirit is that of 
progress. Not so the government. The public administrator is 
beset with fixed, though general, rules, his success usually is meas- 
ured not by results, but by compliance with the rules; he must carry 
out the law even where the law is inexpedient and at the end of the 
year he can point to no definite money gain or loss resulting from 
his operations. For these reasons the urgent need of our govern- 
ment administration to-day is greater elasticity and freedom to 
conform to new conditions and a clearer, more definite test of re- 
sults. In this sense the new freedom which the Executive enjoys 
is a great advantage to the community; it enables him to adopt 
modern methods, to change with the rise of new circumstances and 
to keep the administration thoroughly up to date. The State and 

1 When in 1913 rumors of a panic arose and business stagnation set in during 
the extended tariff debates in Congress, Secretary McAdoo announced that he 
would prevent a money stringency by selling $50,000,000 of Government bonds 
and by depositing the proceeds of the sale with national banks in agricultural 
sectionSj in order to aid the marketing of the farmers' crops. 



THE PRESIDENT 33 

city executives are even forced to go one step farther and to choose 
which of the laws they will enforce. 

Means of Enforcing the Law. — The President has at his disposal 
for the execution of the law, the courts and the armed forces of the 
United States, including the State militia when the latter is re- 
quired to suppress an insurrection. In our early history the use of 
an armed force was more familiar than at present, because of in- 
herited traditions. In the monarchical countries of the Continent 
the frequent resort to physical force by the executive is a marked 
feature of government. 5 Early in the history of our country Presi- 
dent Washington had to cope with a serious, organized attempt to 
violate the tax-laws of the United States in western Pennsylvania. 
The internal tax on distilled spirits fell with special weight upon 
the people of that section and all classes organized to resist the 
collection of the tax. The movement assumed such proportions as 
to threaten an insurrection and the President sent a force of fifteen 
thousand troops under General Lee to suppress opposition and 
compel obedience to the law. The most recent employment of 
this means on a large scale to execute the Federal laws was in the 
case of the American Railway Union strike in 1894. A strike hav- 
ing broken out in the Pullman Palace Car Works at Pullman, 
Illinois, the American Railway Union refused to move trains to 
which Pullman cars were attached, and a disastrous general tie-up 
of the railways centering in Chicago followed. Although an or- 
dinary strike in itself is legal, in this case it was accompanied by 
rioting; finally mail-trains were blocked by violence, and President 
Cleveland ordered United States troops to Chicago to protect them 
and to enforce the Federal postal laws. These cases attracted wide- 
spread attention and much criticism because of the rarity of the 
occasion and some popular sympathy with those in resistance, 
but there is no doubt of the constitutional power of the Executive 
to use armed force. In the State governments, such an exercise of 
force is more frequent but is usually required less for the purpose 
of carrying out a positive law than to quell insurrection and riot. 

The Injunction. — Where damage to property is feared as in case 
of a riot or organized violence, the threatened property-holder 
usually applies to the court for an injunction. This is a writ issued 
by the ccurt 2 either to particular persons mentioned by name or 
to all persons whomsoever, forbidding them to commit any act 
which will interfere with the property in danger. This injunction 
is then published or "served," and upon such service becomes bind- 

1 The German process of forcible execution ("Zwangs-VoUstreckung") of 
law places far-reaching military powers in the hands of the executive official 
as does also the French droit administratis and these powers are used in a wax- 
that to Americans would seem obnoxious. But it must be recalled that in the 
countries named, as on the Continent generally, the military influence is strong 
and in Germany particularly there is a pronounced preference for "rattling the 
sabre." 

2 See the Chapter on The J udiciary 



34 THE NEW AMERICAN GOVERNMENT 

ing on all parties mentioned in the writ. Any person disobeying 
this writ is liable to immediate arrest and punishment for contempt 
of court, either by fine or imprisonment or both. The injunction is 
often asked for by the Executive to compel obedience to a law, one 
of the most notable instances being the celebrated labor case In re 
Debs, 158 U. S. 564, decided 1895, which arose in the Pullman 
strike in Chicago in 1894 already described above. In this case 
Eugene V. Debs, President of the American Railway Union, on the 
petition of the U. S. District Attorney was enjoined by the United 
States Circuit Court, from combining or conspiring with other 
persons to obstruct the rails, tracks, engines and trains of certain 
railways engaged in interstate commerce and in carrying United 
States mails. Debs and other members of the American Railway 
Union and "All other persons" were forbidden by the injunction 
from so conspiring to commit such damage to property and to the 
mails. After the injunction was issued the violence continued and 
Debs and four of his fellow officers in the Union accused of disobe- 
dience to the injunction, were brought before the Circuit Court, and 
on December 14, 1894, they were found guilty of contempt and 
sentenced to imprisonment in the county jail for terms varying 
from three to six months. They appealed to the Supreme Court 
of the United States which upheld the lower court in all respects 
and declared the injunction to have been properly issued in order 
to protect the property of the United States and to prevent inter- 
ference with the postal laws. 

The use of the courts to enforce Federal laws has now become the 
principal mainstay of the Executive when faced by serious opposi- 
tion. The employment of the military inevitably creates a deep 
and painful impression on the public at large, while with those in 
resistance it leaves an irritation and a rankling hostility to the 
constituted government which require years to overcome. Rather 
than have direct resort to physical force, therefore, the Executive 
usually appeals directly to the courts and secures the added pres- 
tige of a court order, executed by the United States marshal. 
Should a weak Executive avoid the issue, and fail to enforce the 
laws, the private parties affected must then undertake the burden 
of securing a writ from the proper court. Many of the injunctions 
issued by our courts would be unnecessary if the proper executive 
officials took upon themselves the full powers and duties conferred 
by law. 

V. Command of Military and Naval Forces. — 1 To many it may 
seem that the war powers of the President should be ranked first 
in importance; they are unquestionably the most extensive in scope 
and irresistible in sway, placing him in the position of a temporary 
dictator. Yet they are but temporary. What a striking proof of 
this is furnished by the wars of 1861 and 1898 ! From the command 

1 The question of army administration is discussed in the Chapter on The 
War Power of Congress. 



THE PRESIDENT 35 

01 hundreds of thousands of men this power fell within one or 
two years to the control of a handful in the regular army; from the 
unquestioned military sway ovu* the lives, property and liberty 
of millions of people in 1861-65, the central authority shrank to a 
joint legislative and executive control over a few districts in the 
South, waiting to be re-incorporated in the Union. Great and irre- 
sponsible as are the military powers of the President, imminent as 
seems the possibility that he may in time of crisis violate even the 
Constitution itself, we must acknowledge that the tide of power 
ebbs even more swiftly than it rises, leaving the President with 
more prestige perhaps, but with no increase of authority. 1 Public 
opinion demands the reduction of military expenses and the return 
tc their homes of the men who have volunteered for the war. In 
the face of this demand no scheme for military dictatorship could 
survive 

Of the remaining powers of the President, three deserve special 
mention, his message to Congress, his veto power, and his duty to 
protect a State against invasion and domestic violence. 

The Annual Message. — The President's influence on law-making 
has not developed along that line which at first glance seems to 
offer the most natural means of growth, that is, his annual message. 
The value of the message has even declined. The annual communi- 
cations of earlier Presidents were documents of the highest impor- 
tance. They were in very fact "information of the state of Union," 
to quote the words of the Constitution and as such received the 
grave consideration of the Congress, being answered and discussed 
ofttimes in detail. And to the people at large the President's 
message was " information." 

The roads and means of communication of the country at 
the time were so undeveloped that a large percentage of the 
people received their first official news of important national ques- 
tions from the President's message; but the telegraph and the 
hourly newspaper edition have removed us far from this state of 
affairs and the message may now only be called "information" 
by courtesy. Not only is it devoid of news, but it is inten- 
tionally made so general in character as often to lose point; 
sometimes it does not even "recommend . . . such measures as 
he shall judge necessary and expedient," but simply calls the at- 
tention 01 Congress to a situation in such a tone as to imply that 
the legislature had the entire responsibility for the measures to be 
taken. This apparent anxiety to avoid any possible suggestion of 
interference with the prerogatives of the legislature might appear 
almost ironical in view of the attempts made by the Executive to 
influence legislation; but there is a certain consistency in the atti- 
tude. The legislative efforts of the President are often indirect 
and even secret. Individual Congressmen are willing and even 

1 The military power to govern territories acquired by war is also only tem- 
porary. 



36 THE NEW AMERICAN GOVERNMENT 

glad to represent the views of the Executive, but Congress as a 
body immediately resents any open or public attempt to dictate 
laws; and while the whole substance of things now points to exec- 
utive leadership in legislation, the form of Congressional in- 
dependence and sovereignty must be scrupulously maintained. 
The real importance of a message is now to be seen not in the an- 
nual communication sent to Congress in December, but on occa- 
sions when a special session is called or when the President sends 
a special note to Congress, dealing with a single occurrence requir- 
ing immediate legislative action. Good recent examples of this 
are President McKinley's and Wilson's tariff messages at the spe- 
cial sessions in March, 1897 and 1913, and President Roosevelt's 
note to the Senate regarding the Cuban Reciprocity Treaty in the 
special Senate session early in 1903. In all these cases the com- 
munication led to action by the bodies addressed. Paradoxical 
as it seems, the reason for diminished value of the President's 
message lies in the increased influence of the Executive and his 
closer relations with Congress. So long as he remained in a posi- 
tion of " magnificent isolation," his formal communications with 
Congress must necessarily be important, signifying as they did his 
principal if not his sole positive means of touching the field of 
prospective law-making. But since the President has left this 
pedestal of isolation and now undertakes to participate freely and 
informally in the legislative program of the time, his authority can 
be made a thousandfold more effective by the personal "confer- 
ence" at the White House than by a ponderous and formal mes- 
sage. Instead of addressing Congress from a distance each new 
President now sends for the party leaders and tells them politely 
but clearly what should be done. And it is done. 

What then, is the real importance of the message to-day? Briefly, 
it is that of an annual proclamation to the country at large, setting 
forth what the President believes to be the principal problems of 
the time. President Wilson revived the business-like method of 
personally reading his communications on important subjects to 
the assembled House and Senate. If, as now seems probable, 
greater emphasis were put upon the special message, limited to a 
single subject and presenting a pointed definite suggestion on that 
subject, the legislative influence of the President's communica- 
tions would be greatly enhanced. 

The Veto. — As a bill passes each House of Congress it is signed 
by the presiding officer, the signature being attested by the clerk 
or secretary. Having passed both, it is sent to the President and 
signed and dated by him; the date which he gives it determines 
the time at which it becomes law unless the bill itself provides other- 
wise. If the President vetoes it, he writes upon it simply the word 
"veto" (I forbid) and returns it to the house in which it originated 
with a brief summary of his reasons. According to Article I, Sec- 
tion VII, Clause II, the President is given 10 days, not counting 



THE PRESIDENT 37 

Sundays, in which to sign or veto a bill. If he takes no action in 
that time and Congress is still in session the bill becomes a law 
without his signature but if Congress has adjourned within the 
ten-day period and thereby prevented him from returning it, the 
bill fails of enactment. This is the " pocket veto." Some of the 
earlier Presidents considered that the purpose of the veto was to 
prevent the passage of unconstitutional legislation, but our later 
executives have taken the broader view that the President may 
use his right on any ground of public policy that he sees fit, and 
that it is his duty to act as an independent factor in legislation. 
These same Presidents, notably Cleveland, Taft and Roosevelt, 
have frequently forced the amendment of pending bills in Congress 
by letting it be known that they would veto the measures unless 
changed to conform with the executive views. While the simple 
statement of this power seems arbitrary, it has not been so used 
by the executives in question but has rather been employed by them 
to hold the majority legislators to a stricter observance of the 
party's pledges. 

Protection of States. — The duty of the President to protect the 
States against invasion and domestic violence is founded upon 
Section 4 of Article 4 of the Constitution which provides: — 

"The United States shall guarantee to every State in this Union 
a republican form of government and shall protect each of them 
against invasion, and on application of the legislature, or of the 
Executive (when the legislature cannot be convened) against 
domestic violence." 

Under the decisions of the Federal Supreme Court Congress 
may decide when a republican form of government exists in a State, 
by means of its power to admit the Senators and Representatives 
from that State to their seats in the respective Houses of Congress; 
the question as to who has the duty and power to interfere in a 
State to guarantee the republican form must also be answered in 
favor of Congress, as in the case of the Reconstruction of the 
Southern States. Congress has also provided by law for the occa- 
sion and manner in which the President may intervene to repel 
invasion and suppress domestic violence upon the application of 
the Executive or the legislature of the State. 1 

The Cabinet. — The American Cabinet, like that of Great Britain, 
is net a formal legal body recognized by statute; it is a weekly 
gathering of the heads of the ten executive departments for report 
and conference with the President. The members meet in the 
President's office and are seated about a central table in the order 
in which their respective departments were created by law, and 
their reports are usually heard in this order unless events oi special 
importance in one department should cause a deviation from the 
customary program. The Secretary of State is seated upon the 

1 A brief, interesting discussion of this subject is found in Chapter III of 

Wwodburn's The American Republic and Its Government. 



38 THE NEW AMERICAN GOVERNMENT 

President's right, the Secretary of the Treasury upon the left of 
the President and so on, the order of precedence being as follows: — 
State Navy 

Treasury Interior 

War Agriculture 

Justice Commerce 

Post Office Labor 

The affairs brought up for discussion are selected from the few 
most important matters in each department. Formal motions or 
resolutions are not made but a full and free expression of opinion 
is invited. At the close of the meeting a brief memorandum of the 
action agreed upon is usually communicated to the press. An in- 
teresting feature of the Cabinet is the combination of Business 
and Politics represented in its personnel. Our Presidents are 
obliged to enlist the political support of doubtful States and of 
doubtful factions in the party by allying the leaders with the ad- 
ministration. One of the best ways of doing this is by appoint- 
ment to the Cabinet. But it is also necessary to have certain 
important departments headed by men with special administrative 
ability regardless of their prominence or insignificance in the party 
leadership. While it is conceivable that a group of capable business 
and professional men might administer national affairs so efficiently 
as to deserve general approval, the President's Cabinet must not 
only deserve but also secure approval; that is, some of its members 
must be skilled in the art of winning popular sympathy and sup- 
port. The only regular organization for expressing this support is 
the party. In England this distinctly political phase of the Cabinet 
is even more pronounced than in the United States. All the lead- 
ing English politicians of the majority party are necessarily made 
official members of "the Government." In America the President 
has developed the practice of securing political counsel from all sec- 
tions of his party regardless of membership in the Cabinet; the latter 
body is gradually taking on more of an administrative character, 
and discusses distinctly executive rather than political questions. 

Another important difference between the American and British 
Cabinets is the custom of American department heads of managing 
their departments in fact as well as in theory, while the British 
chiefs rely almost entirely upon their assistants for the ordinary 
conduct of business. This partly explains the short term of service 
of most American officials. Such men as have the executive ca- 
pacity and willingness required to manage a department are in 
great demand outside the public service. 

In our own country the Cabinet takes no political responsibility 
for the acts of the President; if a department head does well or ill 
the praise or blame falls on the President. If the President makes 
a mistake he reaps the results. Nor is there any Cabinet unity or 
"solidarity" as the Europeans call it, that is our Cabinet does not 
stand or fall together as a body, — each individual is appointed 



THE PRESIDENT 39 

separately and retains or leaves office as the President prefers. 
Since the Executive is constitutionally separate from Congress, 
the Cabinet does not resign when the legislative branch falls under 
the control of the opposition party; it need retire only when the 
President goes out of office. All these features of our national 
executive council give it a peculiar position in the government, 
prevent it from controlling the authority and influence which are 
exerted by European Cabinets, and make it chiefly a body of ad- 
ministrative, not political, advisers. 

The President as a Leader of Public Opinion. — Since the Presi- 
dent is now the chieftain of his party and has taken the responsi- 
bility for all important party measures, he must have an opinion 
on every national question of the day and must place this opinion 
before the people. The annual message no longer fulfills this func- 
tion, as we have seen, and the Executive accordingly needs some 
more direct and frequent means of molding the views of his fellow- 
citizens. 

The most important of these is the interview or statement given 
to the public journals. The Associated Press and all the larger 
daily newspapers of the country maintain special correspondents 
with offices in Washington. These press representatives are recog- 
nized and given special privileges in the Executive Office Building 
on the White House grounds. For many years it was customary 
to allow newspaper men to shift for themselves in securing informa- 
tion about important executive acts. If a correspondent wished 
to obtain news, he made inquiry of the heads of departments or 
secured a personal interview with the officials in question. Nowa- 
days the old-fashioned interview with all its opportunities for mis- 
understanding and mistaken inferences is considered unsatisfac- 
tory and has become rare. The President frankly recognizing that 
the public has an interest in every important act of his administra- 
tion, no longer shuns the news-gatherers, his secretary prepares 
full statements for the press which are sometimes read to the as- 
sembled newspaper men or are manifolded and handed to them 
for such use as their papers may wish to make. If public interest 
in the question is active, the official statements often reach a column 
in length and are placed on the front page of every morning paper 
in the country. 

The influence of these written statements is general and profound. 
Within twenty-four hours the President by this method is enabled 
to place before the entire nation a concise, popular summary oi 
his attitude, framed in his own words. It is not strange that these 
frequert, published addresses to the people have become one oi 
the strongest means of molding public opinion on current issues. 

A sudden emergency arises in our national policy in foreign 
affairs or corporate regulation, various opinions are expressed by 
different groups of politicians, diverse conjectures ami speculations 
are rife as to the facts, public opinion needs reliable, authentic 



40 THE NEW AMERICAN GOVERNMENT 

information and leadership. Immediately the newspapers of the 
country present on their front pages a statement from the President 
or a Cabinet Secretary as to the facts, the policy of the adminis- 
tration, and the reasons. In this way every citizen has laid on his 
breakfast table in the morning a communication from the chief 
Executive of the nation. Opinions may differ as to the advisability 
of his acts but the advantage is all with the President. The people 
feel that they are taken into his confidence and he is able to build 
up a strong popular support for his ideas. One result is the marked 
strengthening of his influence on legislation. He soon finds his 
efforts to secure the passage of his bills through Congress are aided 
by the force of the public opinion which he has himself aroused. 
This opinion now makes itself felt in letters to Congressmen, in 
letters to the public press and in the editorial attitude of the news- 
papers, so that on important issues it becomes difficult for the party 
leaders to withstand the pressure; they often fall in with the Presi- 
dent's program because it has become the people's program. 

An additional means of guiding public sentiment is the speaking 
tour through the country. These Presidential tours are frequently 
undertaken with a set purpose in view. Notable instances were 
President Johnson's unsuccessful "swing 'round the circle" at the 
time of his contest with Congress over the reconstruction policy 
in the Southern States. Another example is President McKinley's 
trip through the South in his second administration which resulted 
in the creation of a new feeling of sympathy and friendliness for the 
national Executive in that section. President Roosevelt's tour of 
the Central and Western States at the beginning of his second 
administration was aimed to secure support for his corporation 
policies; and his trip on the Mississippi strengthened public senti- 
ment in favor of improving internal waterways. The speech- 
making trips of the President succeed or fail accordingly as he 
bears a clear positive message to the people or takes a merely de- 
fensive, explanatory attitude. It is not difficult for a President 
who has a definite program to gain strong support for it by present- 
ing it in a popular style, free from technicalities, and taking care 
to concentrate public attention upon its central features only. 

The Strong President. — A few decades ago the popular candidate 
for President was a man without enemies, — one who because of his 
diplomatic, tactful attitude towards all public questions, had 
avoided provoking hostility and who was therefore welcome in 
all factions of his party. James Bryce, in the first editions of 
his well-known work, The American Commonwealth, included a 
chapter with the title, "Why Strong Men Are Not Chosen Presi- 
dents." But in thirty years our conditions have greatly changed 
and the people no longer have an interest in the candidate who is a 
tactful nonentity. Rather do they favor one who proposes that 
something be done and who is himself a man of action. In response 
to this new popular feeling the political leaders in selecting their 



THE PRESIDENT 4 1 

candidates now choose men of positive force and strong views. 
This is not peculiar to our present conditions; in the past the na- 
tional crisis has called forth the strong man. When the slavery 
question suddenly transformed itself into the problem of secession 
James Buchanan occupied the Presidential chair. Amiable, well- 
meaning and honest, he tried to compromise the difficulty, but in 
vain. The majority of the people, feeling the need of a pronounced 
and positive character then turned to Lincoln. Examples might be 
multiplied, but it is a familiar fact that the man of purpose and 
capacity is often forced up by the emergency. If now we add to 
this the fact that our present national questions are steadily grow- 
ing in breadth and importance and that they can no longer be 
solved by the former innocuous type of statesman we may realize 
how completely the qualifications for the Presidency have changed 
and how difficult if not impossible it would be to return to the old 
standard. 

Our view of the stronger Executive is accordingly a matter of 
temperament. If we believe that a passive, quiescent government 
is required, we shall fear the one-man power because of the danger 
that it may be controlled by a misguided or an unscrupulous Execu- 
tive. In such a case, we say, would not the very efficiency, rapidity 
and irresistible power of the office become a two-edged sword which 
might plunge the country into war, debauch the national civil 
service, prostrate the business interests of the nation and even 
destroy popular faith in republican government? A strong Execu- 
tive from this standpoint is dangerous because he is efficient for 
evil as well as good. But if we feel that a new era has set in in 
American national life and that our government must impera- 
tively be re-enforced to cope with the greater problems of this new 
era, we shall be more impressed by the need for action than by the 
danger of mistakes, and our ideal will be an active government 
guided by a strong man. 

REFERENCES 

Benjamin Harrison: This Country of Ours. 

Finley and Sanderson: The American Executive. 

Goodnow: Administrative Law of the United States. 

Fish: The Civil Service and The Patronage. 

Stanwocd: History of the Presidency. 

United States Civil Service Commission A nnual Reports. 

Annual Reports of Executive Departments. 

Haskins: The American Government. 

Fairlie: The National Administration. 

Bryce: The American Commonwealth, iqio Edition. 

Beard: American Government, revised edition. 

Hart and McLaughlin: Cyclopedia of American Government. 

QUESTIONS 

i. Prepare a summary of (he provisions of the Constitution on the following 
points: 

(a) Date of Presidential election. 



42 THE NEW AMERICAN GOVERNMENT 

(b) Presidential electors. 

(c) How are electors chosen? 

(d) How, where and when do electors choose the President and 

Vice-President? 

(e) How, where and by whom is the vote counted? 
(/) How many are necessary'to a choice? 

(g) How shall the President be chosen if no one secures a majority 
of electors? 

2. Correct the following statement: The Constitution provides that the 
people shall elect electors who shall choose the President at Washington. 

3. Who determines whether women may vote for President? 

3a. Would an Act of Congress, granting to all women citizens of the U. S. 
over 21 years of age the right to vote be constitutional? 

4. If three candidates divide the electoral vote between them so that no one 
has a majority, and if the House of Representatives fails to give any of these 
three a majority, who would be the President and why? 

5. Which of the following men would be ineligible to the presidency and 
why? 

John Doe, born in New York of English parents, October, 1877. 
Richard Rosen, born in Sweden, 1876, of American parents, who 

later return to this country. 
Wah Lee, born in 1872 in America of Chinese parents. 
Charley Lee, born in Shanghai in 1879, whose father brings him to 

America in 1871. 
Jacob Higginheimer, born in Ireland in 1874, immigrated to the 

United States in 1894 and naturalized in 1909. 

6. Resolved that the President should have a six-year term. Defend either 
sidejof this question. 

(%}■ How was it intended that the President should be chosen? Did the 
fathers want the method to be democratic? Why? 

8. How has this method been changed by the rise of political parties? How 
by the Twelfth Amendment? 

9. Resolved that the President should be chosen by direct election. De- 
fend either side of this question. 

10. Show by figures how one candidate can secure a majority of the popular 
vote and another a majority of the electoral vote. 

11. In such a case as the above, which candidate is the President and why? 

12. Why does not the State legislature provide by law that each candidate 
shall receive a number of presidential electors in the State proportionate to his 
share of the popular vote in the State? 

13. Contrast the salary of the President with the amount of appropriations 
which he actually controls for executive purposes. 

14. Can Congress increase the salary of a President whose policy it approves? 
Why? 

15. Can Congress diminish the other allowances of a President whose policy 
it disapproves? Why? 

16. What does the Constitution provide as to the President's power of ap- 
pointment and how are appointments made in practice? 

17. Explain the number and importance of the positions filled by the Pres- 
ident with the consent of the Senate. 

18. Why does the President lose so much time on appointments? 

19. Resolved that the President should be allowed to make appointments 
without the concurrence of the Senate. Take either side. 

20. What does the Constitution provide as to the legislative powers of the 
President? 

2i. Did the framers of the Constitution intend the President to be the active 
force in law-making? Why? 
(£2* What influence has the annual message to Congress? 
<£jjp The veto? 
24. How has the President secured the leadership in legislation? 



THE PRESIDENT 43 

25. Prove that this leadership is a temporary change due to the personality 
of certain Presidents, or that it is a permanent feature of our government. 

26. Mention some important laws in recent administrations that were passed 
under presidential influence. 

27. Explain the arguments used against executive influence in legislation. 

28. What is the practical effect of the opposition to this influence? Why? 

29. Explain how and why our foreign relations are growing in extent and 
importance. 

30. Point out the change in our attitude toward foreign trade. 

31. Cite all the clauses of the Constitution dealing with foreign relations. 

32. Describe briefly the various grades of positions in the diplomatic and the 
consular services. 

3^. Explain the present method of choosing men for these services; are they 
permanently retained? Reasons. 

34. Plow could the effectiveness of our foreign services be increased? 

35. Why was a two-thirds majority of the Senate required for the approval 
of treaties? 

36. How does this fit in with our present needs? 

37. If a treaty negotiated by the President and passed by the Senate pro- 
vides for the payment of a sum of money what further steps must be taken to 
render the treaty effective? 

38. If a treaty and a State law conflict, which takes precedence according to 
the Constitution? 

39. Mention some conflicts which have occurred in practice and their results. 

40. Correct the following statement: The President shall have power to 
declare war. 

41. What is the President's influence in bringing on or preventing a declara- 
tion? Examples. 

42. Can the President, without consulting Congress,. recognize a new nation 
as independent and sovereign? Reasons. 

43. Can the President declare that the sovereignty of the United States 
extends to a given island and if he does so is his declaration binding? See 
Jones v. United States, 137 U. S. 202; 1890. 

44. Mention some of the ordinary day-to-day negotiations with foreign 
powers. 

45. Explain the need of a constructive foreign policy and some of the neces- 
sary principles of such a policy. 

46. Cite the Constitution on the President's executive power and duty. 

47. Why has the Executive so much freedom of discretion and judgment in 
enforcing the laws? 

48. The tariff law of 1909 gave to the President the power of levying a 
maximum or minimum rate upon imports from foreign countries according to 
their treatment of our exports to their territory. How would you justify such a 
provision? 

49. Why is elasticity especially needed in the executive department? 

50. If the President encounters violence, in executing the tax-laws what can 
he do? Give examples. 

51. Under the President's authority a deputy marshal is assigned to ac- 
company and protect a United States Judge, against whose life throats have 
been made. In a restaurant where the two are seated an attack is about to be 
made upon the Judge when the deputy shoots and kills the assailant. Can the 
deputy be punished under State law? Why? See /;/ re Neagle, 133 V. S. 1 ; 1S00. 

52. A mob obstructs the passage of a mail car. What can the Federal 
authorities do? 

53. Cite the Constitution 01. he military powers of the President 

54. Why docs not the President become a permanent dictator by means of 
these powers? 

55. Why does not the annual message of the President command greater 
influence on legislation? 

50. Explain the present usefulness of the message. 



44 THE NEW AMERICAN GOVERNMENT 

57. When the recent strike at Colorado had got beyond the control of the 
State government the Governor called upon the national government for pro- 
tection. What clause of the Constitution justified the President's interference? 
Could the President under those circumstances control the Colorado militia? 

58. How does the national government protect the States against violence 
and disorder? 

59. Is the Cabinet provided for by law? What is its purpose? Explain the 
various elements which usually compose the Cabinet and why. 

60. Mention some of the chief differences between the American and the 
British Cabinets. 

61. Correct the following statement: The President has power to introduce 
in Congress bills covering the recommendations made in his annual message. 

62. Why and how does the President seek to influence public opinion after 
he has secured office? Mention some examples. 

63. Can the President pardon a highwayman who holds up a pedestrian on 
the streets of Chicago? Reasons. 

64. U. S. Judge X is impeached and discharged from office by Congress. 
Can the President pardon him and restore him to the bench? Why? 

65. Resolved that the welfare of the country is best served by a stronger 
executive department than that planned by the framers of the Constitution. 
Take either side. 



CHAPTER III 
THE HOUSE OF REPRESENTATIVES 

Why the House is a Popular Body. — The American visiting the 
Capitol at Washington approaches the Supreme Court Chamber 
with reverence, he listens to the Senate debates with mingled re- 
spect and doubt, but he enters the Hall of the Representatives 
with the confident belief that here he will find his delegates express- 
ing his views. "The House," as it is familiarly called, is the tradi- 
tional protector and champion of the people's cause. It inherits 
all that popular confidence and loyalty which have accumulated 
through centuries of struggle in England between the House of 
Commons and the King and through the long colonial era in Amer- 
ica when the people's representatives in each colony defied the 
royal governors. Such is the force of old traditions. But the 
House is also popular because it personifies all the national qualities 
of our people. It has its moods of exalted patriotism and of captious 
irritability, of noble self-sacrifice and of flippant cynicism. It can 
vote by acclamation in the twinkling of an eye fifty millions of 
dollars for national defence, or it can spend an entire afternoon on 
the hilarious and farcical discussion of a bill providing a whipping- 
post for wife-beaters in the District of Columbia. The same House 
which as a Committee of the Whole, threatens to plunge our civil 
service into the corruption of fifty years ago, by refusing to appro- 
priate money for the expenses of the Civil Service Commission, 
rises from its session as a Committee and becoming once more the 
House proper, gravely votes to grant the appropriation which it 
threw out as a committee. Then too the House has the American 
love of extremes. It will follow its leaders sedately and decorously 
for half a session, then suddenly rising up for one exhilarating 
moment of utter defiance it can brush aside all the carefully laid 
plans of the leaders and send Speaker, Rules Committee, Senate 
and President about their business. Because it represents so many 
sides of American character, strong and weak, exalted and common- 
place, the House has won and maintained the sympathy and con- 
fidence of the masses. 

Another cause of its popular nature is the shortness of its term. 
As one of the Federalist writers has said, the House cannot get far 
away from the people in sentiment and opinions, because its term 
is only two years. This is a briefer term than that oi any other 
important national legislature in the world. The British House of 
Commons is elected for five years but may be dissolved at any 
time and a new Commons may be elected in response to a change 

45 



46 THE NEW AMERICAN GOVERNMENT 

in public opinion. The German and French lower Houses have 
likewise a long term, with a provision for dissolution at any mo- 
ment. As between the American and English methods there can 
be little doubt that, practically, the latter makes the legislature 
correspond even more closely to the views of the people than does 
ours, since in America, no matter what sudden national crisis 
occurs, the House remains in office for its full term. Unfortunately, 
our House while elected in November does not go into office until 
the fourth of March after its election and usually does not meet 
until the following December, one year and one month after its 
election. In this period of one year new problems and public ques- 
tions may arise on which the people have no opportunity to express 
themselves. The issues upon which the new House was elected 
must be decided by the old House which is still in office. There 
are no reasons to-day for such a long interval between the election 
and the meeting of the House. Its responsiveness to public opinion 
might be increased by an earlier opening of the session. 

Another ground for the distinctly popular character of the House 
is its direct election by the people. The men of 1787 had little 
confidence in popular government. Direct election of Senate or 
President appeared to them to be an experiment so fraught with 
dangers of demagogue rule and popular turbulence as to be out of 
the question. The direct election of the House was however a 
concession to democracy which seemed reasonably safe provided 
it was checked by an indirect method of choice for the other depart- 
ments. This popularity in the method of choice is further fortified 
by the provision of Section 2 of Article I, requiring that the voters 
shall have the same qualifications as electors of the most numerous 
branch of the State legislature. In Colonial times the most numer- 
ous branch of the Colonial or State legislature was the lower house 
and it was this lower house which had most firmly espoused the 
popular cause. 

Finally the House is popular in a deeper sense in that it repre- 
sents the people directly in proportion to their numbers while the 
Senate represents arbitrary State lines. The majority of the people 
no longer controls the majority of the Senate because the new and 
sparsely populated States which have been carved out of the West, 
taken together with certain diminutive Commonwealths in the 
East, possess a balance of power in the upper house. But in the 
House of Representatives a just rule of apportionment according 
to population has created a confidence that the majority of the 
members expresses the sentiments of a majority of the people. 

Qualifications. — The requirements of Section 2 that every mem- 
ber be twenty-five years of age, seven years a citizen of the United 
States and an inhabitant of the State from which he is chosen, are 
designed to secure a reasonable maturity, Americanism and knowl- 
edge of local conditions. In practice no man is nominated as Repre- 
sentative by any party unless he resides in the district from which 



THE HOUSE OF REPRESENTATIVES 47 

he is to be chosen. If any party were to break this custom the op- 
position would have an excellent opportunity to appeal to local 
prejudice by nominating a man of local prominence against the 
outsider. There are many strong reasons for allowing any citizen 
who is an inhabitant of the State, to be elected from any Congres- 
sional district within the State, as is the case in Europe, but the 
establishment of such a practice is difficult if not impossible in 
America because of the political effect just described. 

Basis of Apportionment. — The apportionment of members of the 
House of Representatives among the States according to the popu- 
lation was originally a complicated matter because of the dispute 
in the Constitutional Convention of 1787 between the slave and 
free States. The slave States wanted slaves counted as a basis of 
apportionment; the free States objected. The same dispute arose 
in relation to direct taxes, the free States wanting the slaves counted 
for taxation to which the slave States objected. A deadlock re- 
sulted from this inconsistent position taken on both sides, and a 
compromise was finally effected, by which direct taxes and repre- 
sentation in the lower house were coupled together, and it was 
agreed that for both purposes a slave should count for three-fifths 
of a white person, leading to the curious Clause 3 of Section 2, 
Article 1 that " representatives and direct taxes shall be appor- 
tioned, etc." The three-fifths clause has since been repealed by 
the 13 th Amendment, which abolishes slavery, and the 14th Amend- 
ment which provides simply that "representatives shall be appor- 
tioned among the several States according to their respective num- 
bers." The same section further declares that when male citizens 
of the United States, twenty-one years of age, are denied the right 
of suffrage by a State, the representation of that State shall be 
proportionately reduced in the House of Representatives. This 
latter provision, which is aimed to protect the negroes against 
disfranchisement, has never been enforced by Congress because of 
the disinclination to raise the race question and also because of the 
very great difficulty of ascertaining the exact number of persons 
who have been disqualified, and of making a proportional reduction 
in the representation of the State. 

Congressional Districts. — After each decennial census Congress 
passes an act fixing the number of members of the next House and 
redistributing the Representatives among the States according to 
the new figures of population. It then becomes the duty of each 
State legislature to divide the State into Congressional districts, 
provided a change in the State's representation has been made. 
A State however may, if it chooses, elect its Representatives "at 
large," thai: is, the State is not divided into districts but the Repre- 
sentatives are elected from the entire State. Each voter instead 
of balloting for only one Representative from his district, ballots 
for as many Representatives as the entire State is entitled to eleet. 
Tins plan is now practiced in North and South Dakota and Wash- 



48 THE NEW AMERICAN GOVERNMENT 

ington. It is open to the objection that the minority party can 
elect no Representatives at all from the State, but the majority 
party takes all, although it may have only 51% of the total vote, 
while under the district plan a section of the State which favors 
the minority party may elect a Representative of that party. Some 
abuse has been made of the district method by dishonest elements 
in the State legislatures; in some States the legislatures have so 
arranged the Congressional districts as to throw into each district a 
majority of voters of the majority party thus giving it practically 
all the Representatives from the State. This is called a Gerry- 
mander. 1 The fairest method would be to elect at large the Repre- 
sentatives from each State but to adopt some plan of minority 
representation in voting so that the minority party would also be 
represented according to its proportional strength. 

The Special Right to Propose Tax Bills. — The Russian Douma 
or Lower House had been in existence just seven days when in 
May, 1906, it demanded complete control over the imperial finances. 
It is for this purpose that nations establish representative legisla- 
tures. The British House of Commons fought with the Crown for 
centuries to conquer and maintain this right over the purse and 
it was only in the measure that the Commons succeeded, that real 
popular government was established. It is to a dim recognition 
of the rights of the people to be consulted in taxation that the 
very existence of the British Parliament is due, and, almost with- 
out exception, the great constitutional documents of Great Britain 
from Magna Charta in 12 15 down to the Bill of Rights of 1689, 
contain the solemn promises of the King to respect this right. One 
of the means of securing popular control is the custom of allowing 
only the direct representatives of the people to propose tax bills. 
Our American House as a lawful heir of the British Commons has 
inherited this privilege which is guaranteed by Section 7 of Article I. 

1 The best short but comprehensive description of this dishonest practice is 
given in Eryce, The American Commonwealth, Volume I, page 126, new edition: 

"So called from Elbridge Gerry, a leading Democratic politician in Massachu- 
setts (a member of the Constitutional Convention of 1787, and in 181 2 elected 
Vice-President of the United States), who when Massachusetts was being re- 
districted contrived a scheme which gave one of the districts a shape like that 
of a lizard. Stuart, the well-known artist, entering the room of an editor who 
had a map of the new districts hanging on the wall over his desk observed, 
'Why, this district looks like a salamander,' and put in the claws and eyes of 
the creature with his pencil. 'Say rather a Gerrymander,' replied the editor; 
and the name stuck. The aim of gerrymandering, of course, is so to lay out the 
one-membered districts as to secure in the greatest possible number of them a 
majority for the party which conducts the operation. This is done sometimes 
by throwing the greatest possible number of hostile voters into a district which 
is sufficient to turn the scale. Thus a district was carved out in Mississippi 
(the so-called Shoe String district) 500 miles long by forty broad, and another in 
Pennsylvania resembling a dumb-bell. South Carolina furnishes some beautiful 
recent examples. And in Missouri a district was contrived longer, if measured 
along its windings, than the State itself, into which as large a number as possible 
of the negro voters were thrown." 



THE HOUSE OF REPRESENTATIVES 49 

"All bills ':::; raising revenue shall orginate in the House of Repre- 
sentatives." The Senate is of course allowed to amend a tax bill, 
it may also introduce a bill providing for the appropriation of 
money. Since the Senate amendment may and often does take 
the form of a completely new substitute for the House bill the 
ancient privilege of the lower house amounts to nothing in practice. 
The real advantage is with the Senate as we shall see. 

Impeachment. — A second special prerogative of the House is the 
power of impeachment. Section 2 of Article I provides "The House 
of Representatives shall choose their Speaker and other officers 
and shall have the sole power of impeachment." By impeachment 
is not meant the hearing and final decision of the case (this duty 
belongs to the Senate which is the trial court), but rather the bring- 
ing of a formal accusation. This accusation, which is technically 
the impeachment, is formulated by the House. After the resolution 
of impeachment has been passed, a special committee of the House 
is then chosen to present the charge to the Senate and to conduct 
the prosecution before the latter body. In the final trial before 
the Senate a majority of two-thirds of the Senators present is 
necessary for a conviction but in the House the vote to bring the 
accusation or impeachment may be a simple majority. The most 
noted trial in America, that of President Andrew Johnson, resulted 
in a failure by one vote to secure the necessary two-thirds majority 
in the Senate. President Johnson's differences with Congress were 
mere differences ot opinion on questions of reconstruction policy, 
in which it now seems he was right, whereas the process of im- 
peachment was intended as a punishment for flagrant wrongdoing. 
The influence of partisan or factional intrigue in the determination 
of a case was not foreseen by the framers of the Constitution. Im- 
peachment is no longer considered a feasible means of remedying 
any evils short of treasonable misconduct. 

The Speaker. — When the authors of the Constitution provided 
that "The House of Representatives shall choose their Speaker and 
other officers" they had in mind a Speaker who would act merely 
as a chairman in debate, presiding over the proceedings with that 
impartiality which is customary in all foreign legislatures, especially 
in Europe. But the keen conflict of parties in the United States 
and the many opportunities that are presented to the minority 
party to obstruct business by taking unfair advantage of the rules, 
have placed the Speaker in an awkward predicament. Either he 
must stand by and see the measures to which his party stands 
pledged, blocked by the obstructive strategems of the minority 
or he must plunge into the conflict and use his official power to aid 
his party in the passage of those measures. He has chosen the latter 
course. Whether the Speaker has been Clark, Crisp or Randall oi 
the Democrats, or Cannon or Reed of the Republicans, he has been 
forced to abandon all pretence of impartiality and to support and 
guide his party in its legislative program. Previous to iqio, the 



50 THE NEW AMERICAN GOVERNMENT 

Speaker was the autocrat of the House. He appointed committees 
and their chairmen, he dominated the all-powerful Committee of 
Rules which determined the order of business of the House, and, 
by his influence over the committee chairmen, he determined what 
action should be taken by each committee on every important bill 
referred to it. As his prestige grew, the competition among the 
members of the House for his personal favor also increased; it was 
in the Speaker's power to consign a member to oblivion or to exalt 
him to the chairmanship of a strategic committee upon whose work 
the attention of the nation would be concentrated. The McKinley 
Bill, as the tariff of 1890 was called, gave an international reputation 
to the Congressman from Ohio and placed his foot on the steps of 
the White Housec Yet he was simply the chairman of the Com- 
mittee on Ways and Means and as such had done what the heads 
of other committees do. All the Republican members of the com- 
mittee took an active part in the preparation of the measure and 
it cannot be said that McKinley more than others actually framed 
the bill. But as chairman he was necessarily chosen to introduce 
and press the new measure to successful passage. So also the Wilson 
Bill, as the Democratic tariff law of 1894 is called, the Dingley 
Bill, or tariff of 1897, the Payne bill, the Hepburn bill, etc., have 
all been represented by chairmen or members of important com- 
mittees, — men whose appointment to such committees placed them 
in the forefront of legislative activity and public discussion. 1 It 
was therefore natural that this control over the personal destinies 
of members of the House should make the Speaker not only the 
moderator but also in a real sense the dictator of the House. 

The Speaker became the maker of both laws and men. He deter- 
mined who should stand in the public mind to represent and per- 
sonify the principles of the majority party, whose names should 
be on every lip in political discussions, whose speeches should be 
printed in the newspapers and who should lead the party on the 
great issues of the day. As ex-officio member of the Committee 
on Rules, the Speaker determined what measures the House should 
consider and for how long. Armed with this power, it was inevi- 
table that he must sooner or later confuse his personal views with 
the will of the majority party and that when these two conflicted, 
he should be in position to use every means in the control of his 
office to suppress opposition. 

It was this personal use of the Speaker's power which led in 19 10 
to an insurrection within the Republican party. The insurgent 
element declared for greater democracy, for more frequent consulta- 
tion of the party members on questions of policy and the total and 
complete abolition of the Speaker's practice of punishing men who 

1 The Underwood tariff shows the difference wrought by the new rules of 1910 
and later years, — Underwood was a prominent leader long before he was made 
chairman of Ways and Means and he does not owe his position on the committee 
to the Speaker but rather to election by his colleagues. 



THE HOUSE OF REPRESENTATIVES 5 1 

opposed him in the party counsels. They declared that no party 
member who merely differed from the Speaker on questions of 
policy was therefore to be excluded from the important committee 
appointments and otherwise punished in the procedure of the 
House. Such had, unfortunately, been the policy in certain notable 
cases. 

A remarkable instance was offered in the ist session of the 59th 
Congress. At that time a bill for the restriction of immigration 
had been passed by the Senate in response to a strong public de- 
mand. The bill imposed a tax on all immigrants, and required an 
educational test. The member who had framed it, a representative 
from Massachusetts, had made repeated attempts to have the 
measure considered by the House, but was unable to secure the 
Speaker's consent so long as the educational test was included in 
the bill. The member in question, knowing that a majority in the 
House wanted to enact the bill in deference to public opinion, was 
therefore confronted by the evident alternative of dropping an 
essential part of the measure or attempting to pass it against the 
Speaker's wishes, thereby incurring his wrath. It was precisely 
this danger of losing all independence and initiative or suffering the 
Speaker's possible persecution, which afterward led the members of 
the House to revolt against his authority and limit his powers. In 
our illustration, the member decided to push the bill through. He 
thereupon issued a call for a caucus of the majority party, which 
call was signed by the requisite number of names to make it valid. 1 
The effect of such a caucus would be the adoption of the bill as a 
party measure, which would bind all members of the party, in- 
cluding the Speaker, to support it. The Speaker, knowing this, 
immediately changed his attitude and professed to be ready to 
support the bill. The caucus was abandoned as unnecessary. 

When, however, the bill came up in the House, both in the Com- 
mittee of the Whole and on the final vote in the House itself, the 
Speaker used his utmost influence to amend the bill by striking out 
the educational test. He urged, entreated and threatened members, 
finally securing a majority in favor of the amendment, thereby 
emasculating the bill and defeating one of its chief purposes. The 
next step was the punishment of the framer of the bill for attempt- 
ing to push it through the House in its original form, against the 
wishes of the Speaker. This was easy. The bill had to be referred 
to a Conference Committee representing both Houses in order to 
put it in final shape for passage. The framer of a bill is invariably 
made one of the House members of a conference commit toe. The 
Speaker refused to do so in this case, thereby excluding the author 
of the bill from all participation in the final decision as to its form. 
This member had concentrated his entire activity during the ses- 
sion upon the preparation and passage of this one measure. Vet . at 

1 If 50 members of the party ask for a pajty caucus, such a meeting must be 
held under the party rules, 



52 THE NEW AMERICAN GOVERNMENT 

the close of the session, he was sidetracked and his measure handed 
over to the tender mercies of its enemies. This incident illustrates 
the overwhelming power of the Speaker and his lieutenants under 
the former system. It further shows that they were not only able 
to control a vote in the House, to punish members who refused to 
"go along" but even possessed the power to defeat a measure which 
public opinion endorsed. Such a display of irresponsible power 
could not long continue in effect. It was the high watermark of 
the Speaker's authority. 

It is probable that the Speaker might have retained his powers 
had he refrained from such attempts to punish and suppress com- 
mitteemen who failed to do his bidding, but the setting up of a per- 
sonal machine within the House and the excommunication of those 
who disobeyed only served to strengthen the demand for a reor- 
ganization. The insurgents claimed that in order to protect the 
members of the party and insure the carrying out of its will the 
Committee on Rules should not be under the control of the Speaker, 
nor should he be a member of it but that it should be elected by 
the members of the House. Against these demands Speaker Cannon 
marshalled his committee chairmen, floor leaders and all the stal- 
warts of the majority and sought to crush out the opposition within 
his party by the old-time methods; but the insurgents were not 
to be beaten by this display of force. They formed an alliance with 
the Democrats and securing a majority in this way, amended the 
rules in the above sense. The committee on rules was enlarged from 
five to ten members, elected by the House and the Speaker was 
deprived of his membership in the committee. In the following 
session of Congress the Democrats were in the majority and the 
first question which claimed their attention was the revision of the 
Speaker's power. Having steadfastly declared for a more demo- 
cratic form of organization, they proceeded to reorganize the entire 
committee system and the House rules. 

Selection of Committees. — The first step was to provide that all 
standing committees, which are the important ones, must be 
elected by the House. This at one stroke removed from the Speaker 
his most extensive and most dreaded power. In practice, the com- 
mittees are now chosen as follows: The majority party holds a 
caucus at which it elects by ballot a party committee on committees. 
This body is composed of the party leaders and its duty is to dis- 
tribute committee memberships among the different members of 
the party. Each member is placed according to his importance, 
experience and ability, but not according to his mere docility or 
compliance with the wishes of the Speaker. The committee on 
committees, having completed its labors and arranged its lists, a 
formal meeting of the entire House is called, at which the various 
members are nominated for the committees to which they have 
been assigned, and are formally elected to the same. With slight 
variations, the same procedure is followed by the minority party 



THE HOUSE OF REPRESENTATIVES 53 

which has meanwhile had assigned to it a certain number of places 
on each committee. These places are distributed by the caucus 
of the minority party by its executive committee. Its committee 
members are nominated in the House election and formally chosen 
at the same time as the majority members, the floor leader of each 
party making the nominations. We must not suppose that this 
new plan of electing committee members thereby removes them 
entirely from the control of the party leaders. Such a system is 
unthinkable because with it the discipline of each party would 
( disappear. On the contrary, the new system simply transfers party 
control over the members from its arbitrary, intensely concen- 
trated form in the Speaker's hands to the hands of the committee 
on committees, which is a gathering of all the party leaders of the 
majority. While this may not appear to be an important change 
in theory it is in practice. All the members of the House would 
prefer to have their committee appointments, and thereby also 
their opportunities for legislative work decided by a gathering of 
the leaders than by a single individual. It is this change from a 
monarchy to a representative system in the control of procedure 
which makes the new plan more welcome to the members, and on 
the whole more successful in the operation of the House. 

Present Powers. — In spite of this curtailment of his prerogatives, 
the Speaker still wields the strongest influence in legislation. He 
presides over the proceedings of the House, refers bills to Com- 
mittees, and in general is the leader of his party in the House. In 
presiding over debates, he recognizes whom he will. Theoretically, 
the first member who rises and addresses "Mr. Speaker" — has 
the floor, but in practice such an informal method of securing the 
ear of the House is most rare and can occur only in unimportant 
debates. The speaker now either has at his elbow a memorandum 
of the men whom he is to recognize and give the floor, or he has 
already arranged with the floor leaders of the respective parties 
that they are to divide the time for debate among their followers. 
In a general, promiscuous debate the Speaker can and does select 
those men for recognition, who will voice the sentiments which he 
wishes to have expressed. Therefore as the arbiter or pilot of 
debate the Speaker can not only protect his own party from defeat 
and delay, but within his party he can strengthen and develop that 
group of men wnich he favors. As presiding officer, he decides 
points of order and procedure, always with a view to the promotion 
of his party's legislative program. 

Committee on Rules. — This body is at present composed of ten 
members, elected, four by the minority and six by the majority. 
The w r ork of the committee is to prepare a set of rules of procedure 
for adoption by the House and to bring in from time to time special 
rules determining what measure the House shall consider. The 
procedure rules have grown up through a century and a quarter of 
congressional practice and arc therefore little changed from term 



54 THE NEW AMERICAN GOVERNMENT 

to term, even when the majority passes from one party to another. 
They cover about one hundred and fifty pages, including Jefferson's 
Manual, and are renewed by motion at each Congress. But the 
most important power of the committee is its right to bring in a 
single rule at any moment. The committee's report is in order at 
any time, and takes precedence of all other business. It is also the 
rule that the report when made must be acted on immediately by 
the House, usually with an extremely limited time for debate, — 
often not more than ten minutes on each side. In order to appre- 
ciate the practical value of the committee's work, let us take the 
House for example at a time when the two parties are nearly equal 
in numbers. The minority, feeling its strength, is making every 
effort to prolong debate and to harass and delay action. The ma- 
jority, feeling its control over legislation slipping from its hands, 
is beginning to grow restive under the strain. In such a case, heroic 
measures are needed. The majority leaders, who are nearly all 
members of the committee on rules, confer with the Speaker and 
agree on a rule which shall confine the House to the consideration 
of a particular measure, and shall insure an early vote. They pre- 
pare a rule accordingly, providing that on a given day the House 
shall proceed to the consideration of House Bill No. 362 and shall 
continue such consideration from day to day- This means that 
House Bill No. 362 is to be taken from its place far down in the 
calendar and given preference over all other measures until passed. 
The majority members of the committee, having agreed, the 
minority members are then notified and the committee of rules 
reports its rule to the House for approval. The House must then 
decide at once to accept or reject the rule. It necessarily adopts 
the rule, because a rejection would mean the repudiation of the 
majority party leaders, something which rarely occurs for obvious 
reasons. The change made by the Democrats and Insurgent Re- 
publicans in the committee on rules has not diminished the powers 
of that body, but has distributed these powers among the leaders 
of the majority party instead of concentrating them in the hanc's 
of the Speaker as was formerly the case. 

Floor Leaders. — The position of floor leader is highly important 
but is little understood by the public. Briefly summarized the 
duties of the leader are to direct and manage, for his party, the 
debates on important measures. Congressional debates involve 
numberless questions of parliamentary law and legislative pro- 
cedure which are of so complicated and delicate a nature as to 
endanger the passage of any measure which is not guided by skilled 
parliamentarians. The first function of the floor leader therefore 
is to avoid the pitfalls by which the opposition party may attempt 
to defeat a bill and the embarrassments into which its own advo- 
cates through carelessness may bring it. Furthermore the conduct 
of a debate involves far more than a series of speeches on each side; 
if the bill is one of importance, to which the party stands pledged. 



THE HOUSE OF REPRESENTATIVES 55 



the bill must be put in the most acceptable form, it must be advo- 
cated before the House by the strongest speakers, and these speakers 
must bring out the best features of the bill; this must all be done 
within a limited time and in such a tactful way as to keep the rank 
and file of the majority members enlisted in support of the measure. 
This is the second function of the floor leader, — to marshal the 
forces of his party so as to present the most effective array in debate 
and maintain carefully the party strength and support. This 
second power leads to some curious results in practice. Let us 
take the final debate on an important bill in the House. The ma- 
jority floor leader confers with the minority leader and a verbal 
agreement fixing the day and hour for the final vote is reached. 
This the majority leader can easily secure because he is supported 
by the Committee on Rules which if necessary can report a special 
order fixing a time for the vote. The agreement frequently pro- 
vides that one hour for debate shall be given to each side before 
the final vote is taken. The floor leader of each party then arranges 
the list of speakers for his side. Strange as it may seem a Repre- 
sentative who wants to address the House is in this way often 
obliged to report to his floor leader and have his name placed on 
the list of party speakers by the leader, otherwise he has as little 
chance of securing the floor as has a spectator in the gallery. It 
will be noticed that such an arrangement gives the right of debate, 
not to members of the House, but to the party organizations in 
the House, and within these party organizations, it recognizes the 
leaders only. The severity of this rule varies according to the im- 
portance of the bill under consideration and to the amount of 
free time which the House has at its disposal. Occasionally on a 
minor bill, or in the early days of a session when there is no busi- 
ness of importance pending, the floor may be open to all members 
of the House and the pent-up stream of oratory may be allowed to 
flow for two or three days. Paradoxical as it seems, the Representa- 
tives are only able to express themselves fully on unimportant 
measures or those in which the people have little or no interest; — 
on essential bills, only from one to five minutes can be allowed to 
each member on the floor of the House. The leader may conduct 
his debate in either of two ways: he makes up a list of his party 
colleagues who wish to speak and who have handed their names to 
him for that purpose, which list he then delivers at the Speaker's 
desk, thereby fixing the order in which the members of his party 
shall take the floor; or more usually he claims for himself all the 
time allotted to his party, and after having made some preliminary 
remarks, he yields the floor for a fixed time to each one of his party 
colleagues whose names are on his list. At the end of each oi these 
speeches, he states, "I now yield the floor for — minutes to my 

colleague from ." The gentleman from speaks for 

the allotted period, and so on down the list. When the list is 
exhausted, the floor leader then arises and concludes his own 



56 THE NEW AMERICAN GOVERNMENT 

remarks, summing up the arguments of the preceding speakers 
and re-enforcing them with others of his own. He speaks authori- 
tatively as a representative of his party and closes its side of the 
debate. In this way he controls the discussion at all times. In 
many cases where the time allowed is extremely limited and only 
one hour can be given to each party, the share which an individual 
member may receive from his floor leader is exactly one minute 
and even then a number of members must be denied a hearing. 
Because of the importance of expert management of debates, the 
position of majority floor leader is the most responsible post in the 
House next to that of the Speaker; for this reason also it is neces- 
sary that he should be posted on all points which may be brought 
up in connection with the pending debate, and if the official leader 
is not so prepared it is customary to make the chairman of the com- 
mittee which has reported the bill, the floor leader for that par- 
ticular bill, thereby bringing to the front for the majority party 
the strongest representative in its membership. 

Choice of the Floor Leaders. — Although the floor leaders are men 
of great influence and authority, they are not irresponsible des- 
pots, — usually they are prospective candidates for the position of 
Speaker in some future Congress; a fact which makes them solici- 
tous to win as large a personal following as possible and renders 
them amenable to any strong and continuous drift of opinion among 
the House membership. Then too, they must be leaders in the 
real sense of the word; that is, they must be able to control and 
influence the votes of their fellow members. They are chosen by 
the caucus of their party. 

The minority party also holds a caucus and nominates a candi- 
date for speaker, who is foredoomed to defeat at the subsequent 
election of the House but who becomes the leader of the minority, 
is so recognized in debates, by the Speaker of the House, and is 
given charge of the floor for the minority party. He is also elected 
on the important committees. In this way he becomes almost 
as absolute in his sway over the minority party as are the Speaker 
and his floor leaders over the majority party. In both parties 
discipline and "organization" are the controlling influences. 

For many years the Republicans excelled in superior organiza- 
tion and the party's control over its members and its practical re- 
sults in legislation were at times astonishing. The Democrats on 
the other hand, having no one great issue on which they could unite 
all their forces, tended to dissolve into a series of small groups and 
factions, and thereby lost completely the cohesive unity which 
the minority party must have in order to be effective. Lacking 
this spirit of "team-work," they were unable to present a united 
front to the country and lost many opportunities to take advantage 
of the mistakes of the majority. The results of many national 
elections may be fairly ascribed to this inefficient organization of 
the Democrats; but with the gradual rise to influence of Mr. John 



THE HOUSE OF REPRESENTATIVES 57 

Sharp Williams, Mr. Champ Clark and Mr. Oscar Underwood, the 
control of the party passed on into the hands of men of larger caliber 
with a stronger grasp of the possibilities of party organization. 
These three men, and more recently the latter two, have worked 
assiduously to weld together the discordant elements in the Demo- 
cratic minority, and when the party obtained a majority in 1910 
they successfully coped with the even more difficult task of re- 
organizing the House committees, revising the powers of the 
Speaker, and developing a positive constructive program of legis- 
lation, meanwhile holding the various recalcitrant groups in the 
party to a strict observance of party discipline. This remarkable 
change, which has been aided by the firmness and authority of the 
President, unquestionably marks an era in the history of our Amer- 
ican parties and is all the more remarkable in that during the same 
period the elements of dissension crept into the Republican party 
and impaired its popularity at least for a time. 

The Caucus. — Frequent reference has been made to the caucus; 
this is a secret conference of members of a party for the purpose 
of securing unanimous party action on some important question. 
Such a question may be the nomination of a Speaker, the decision 
as to how the party should vote on an important bill or resolution, 
or the general attitude to be taken by members of the party on 
some new problem which, it is foreseen, may arise during the ses- 
sion. The main idea on which the caucus is founded is quite simple. 
Each party knows that if it presents an unbroken front it not only 
stands a better chance of dictating to or securing concessions from 
the other side, but it also commands more substantial support 
and respect from the people. In the seven years from 1895 to 1903 
an internal dispute or schism in the Democratic minority destroyed 
its ability to caucus in either House or Senate; as a consequence 
the party fell rapidly to such a position of weakness and helpless- 
ness that it lost all control over its own members and became a 
negligible quantity in national legislation. Meanwhile, the ma- 
jority by its strict enforcement of caucus rules was enabled to run 
the government as it pleased. When in 19 10 the Democrats se- 
cured a majority in the House they became a constructive party 
and were obliged to make frequent use of the caucus, aided by the 
President's active influence. The caucus is the simplest means of 
preserving party unanimity and discipline in favor of a positive 
program of legislation. A new bill comes before the House in the 
early part of a session and before the discussion progresses to any 
length it becomes apparent that large numbers of the people arc 
interested in the measure and desire either its passage or its defeat 
or amendment. If the individual members o( the majority party 
are left to themselves some will advocate it, some oppose and some 
insist on essential changes in the bill, and since the weight oi inertia 
is against legislation, the bill must apparently fail for want oi agree- 
ment. At this point the caucus machinery of each party is set in 



5 8 THE NEW AMERICAN GOVERNMENT 

motion. The majority meets and perhaps decides that the bill 
should be made a party measure. This means that every member 
who attended the caucus must vote for the bill on its passage 
through the House. He may express what views he pleases in the 
caucus, he may use all his influence against the measure within 
the conference room but once the caucus has acted, he must support 
the common policy by his vote in the House. "Must" means that 
if he refuses he is outlawed from his party, the measures in which 
he is interested are marked for an early grave, he may be denounced 
to the party executive committee in his State to be defeated in the 
next election and his usefulness to his constituents as a legislator 
is at an end until he repents, is forgiven and becomes once more 
an obedient member of the caucus. Severe as is this discipline it is 
impossible to see how a party could otherwise secure the passage 
of legislation for which the country holds it responsible. 

Meanwhile the minority party may also hold its caucus and de- 
cide on an equally binding policy for its members. Formerly the 
minority would simply oppose the measure, but since the essential 
differences in principle between the parties have disappeared and 
they are now competing with each other on the same ground, the 
minority is apt to advocate either a more radical or a more conser- 
vative substitute for the measure endorsed by its rival. 

From this description it will be clear that the caucus is another 
influence towards the weakening of the individual member for the 
benefit of the party. It also strengthens greatly the position of the 
party leaders. By securing the adoption of a bill as a caucus meas- 
ure they can crush out all effective opposition among the rank and 
file of the House membership. But we must also remember that 
it enables a scant majority of the majority to control the action 
of the entire House, although forming but a fraction of its member- 
ship. Many observers have seen in this practice a serious danger 
to our institutions and have pointed out that a clique of interests 
may dictate the legislation of the country on important questions. 
Doubtless the danger is a real one. But it must be understood 
that strong influences tend to correct any serious abuse of caucus 
rule. First, the caucus of the minority party itself which is eager 
to see and advertise the slightest mistake of its opponents and, by 
shrewdly taking a pronounced and public stand in opposition, to 
bring out sharply the contrast between the two parties in the popu- 
lar mind and thereby win public support. Second, caucus action 
does not bind individual members except upon measures of serious 
importance to the party, that is, unless a majority of the party 
members in the House should declare the matter a party measure. 
This cannot be done with any bill at the mere whim of the party 
leaders. In order to outlaw a member who refuses to abide by 
caucus action the leaders must have the aid of public opinion within 
the party and if the impression got abroad that the caucus was 
being improperly used to push through bills of no essential interest 



THE HOUSE OF REPRESENTATIVES 59 

to the party an immediate rebellion might be the outcome, with 
disagreeable results for the leaders. Since 1908 the spirit of inde- 
pendence has become so strong that political ties are no longer all- 
powerful and the members have grown more keenly sensitive to 
expressions of opinion among their constituencies. 

Third and most important is the good sense, practical experience 
and sound judgment of the leaders themselves. They must know 
when to insist and when to forbear, when to give free sway to in- 
dividual views and when to concentrate the entire strength of the 
party upon a single important measure to insure its adoption. 
The House may lose its head often, but the leader must never do 
so. It is this steadiness and breadth of view which offers the chief 
protection against abuses of the caucus system and of the party 
discipline. 1 Those who criticize so harshly the emphasis placed on 
party organization and the practical elimination of the individual 
at times, must remember that the House has reached an almost 
unmanageable size and that although it cannot deliberate with 
435 members, yet it must enact into law the principles to which the 
majority party is pledged. It is admitted that in so doing the free 
prerogatives and privileges of individual members are often limited 
to an undesirable, almost intolerable extent but this is necessary 
if the lower house is to be an acting rather than a mere debating 
body. The mass of bills and resolutions is so great that complete 
freedom of debate would be impossible and would block action on 
necessary measures, thereby placing the majority party at the 
mercy of the minority. 

Such are the arguments for and against the present method of 
controlling the House debates. Weighing each carefully it appears 
that there have been good reasons for the development of the sys- 

1 In 1913 the caucus of both the Republican and the Progressive parties in the 
House was thrown open to the public as a permanent policy, the party members 
retaining the right to hold a special secret caucus when desired by the majority 
of the members. The Democratic caucus is still held in secret. 

Following up the movement for a more representative organization of com- 
mittees and procedure, the Democratic party now elects in a caucus not only 
its candidate for the Speakership but also the floor leader of the party and the 
party's members of the committee on Ways and Means. The members of 
Ways and Means form what is in reality a "steering committee" for the party, 
and at the same time a committee on committees; they assign all the members of 
the party to the various committees and thereby make the choice Formerly 
belonging to the speaker. The party has also agreed that each member of the 
eleven big committees, such as Ways and Means, Appropriations, Agriculture, 
Post Offices, Rivers and Harbors, etc., shall be allowed to serve v>n only one 
such committee. This opens up the memberships in the more important bodies 
to a larger group of men and prevents a small clique From monopolizing all the 
desirable posts. En 1913 the Senate Democrats agreed to change the autocratic 
power of the committee chairmen in that body. The new rules authorize a 
majority of the party members in a committee to call a meeting of the body to 
appoint all conferees and to name sub-committees, all of these were former 
prerogatives of the committee chairman. The steering committee of the party 
in the Senate is no longer to be appointed by the ehainnan of the party caucus 
but to be elected by the caucus itself as in the House. 



60 THE NEW AMERICAN GOVERNMENT 

tern but there is no ground for the maintenance of a personal of 
irresponsible " machine" or clique such as existed under the old 
regime. When the majority party is to be defended from the ob- 
structive tactics of the minority all will agree that the leaders' 
authority must be extended to force legislation through; but this 
authority must not be employed to defeat or impair measures upon 
which the party is substantially agreed, nor must it become a means 
of punishing or rewarding the personal friends and enemies of the 
ruling clique, otherwise representative government ceases. The 
present organization of the House, the method of choosing the floor 
leader, committee on committees and the party's representatives 
on the committee on rules seems far more equitable and fairer than 
the old dictatorship, while still allowing effective concentration 
of authority in battles with the obstructive minority. 

It seems only a question of time until the same movement which 
has led to the reduction in size of city councils and is now centering 
around State legislatures, shall also reach the national House of 
Representatives and cause a change in our present methods of dis- 
tributing members among the States. Most of the drastic meas- 
ures which are necessary to secure the transaction of business in the 
House and the sacrifice of the new member for the sake of getting 
bills passed and business transacted might be dispensed with or 
modified if the House were a body of reasonable size. We may 
never adopt the commission form of government for the national 
legislature but we might unquestionably improve our procedure 
and the quality of our legislation greatly by making debate pos- 
sible in the House. With a minimum number of one from each 
State and slightly more from the larger States, the House could be 
cut down to a body of ioo, a change that would restore to it much 
of its former importance and prestige. 

Committees. — Dr. McConachie in his interesting work on Con- 
gressional Committees has pointed out that the history of a nation 
is mirrored in its legislative committees. As new questions of pub- 
lic moment arise, new committees are formed to deal with bills on 
the subject, as old problems are settled and pass out of the political 
horizon, their corresponding committees diminish in importance 
and are discontinued. 1 The acquisition of our island dependencies 

1 "Society is everywhere using committees. Their importance in the many 
lines of public and private co-operation is on the increase. Here a fashionable 
city club chooses certain of its members to arrange for some brilliant reception; 
there a busy board of trade requires a select few of its body to report upon an 
important commercial undertaking. The Christian Endeavorers find remark- 
able utility in the committee idea. So does Tammany Hall. Alike to the 
primary and to the governing council in a rural American village, to the German 
Reichstag and to the active municipality of Berlin, the device is indispen- 
sable. . . . 

"Wherever men have begun to use political representation, advantages 
similar to those which recommended it to democracy have soon led the assembled 
representatives a logical step farther to commitment. . . . 

"The waxing and the waning of committees and their struggles among them' 



THE HOUSE OF REPRESENTATIVES 6 1 

in the Philippines, Porto Rico, Guam, etc., gives rise to the new 
Committee on Insular Affairs, the demand for more land in the 
West develops a need for irrigation on a large scale and this in turn 
causes the establishment of the Committee on Irrigation and the 
passage of laws which have done more for the West than any 
measures since the building of the trans-continental railways. 
Meanwhile, the Pacific Railway question having been solved, there 
now remains nothing to prevent the Committee on Pacific Railways 
from disappearing altogether. 

There are certain committees which, owing to the peculiar nature 
of the matters under their control, have achieved positions of special 
distinction and importance. A description is given of a few of 
these in order to show the practical working of the Committee 
system. 

The Committee of the whole House on the State of the Union is 
composed of all the members of the House; it is presided over not 
by the Speaker but by some member whom the Speaker designates 
for the purpose. Its rules of procedure, unlike those of the House, 
are very informal, yea and nay votes of individual members are 
not recorded because the proceedings are only those of a Com- 
mittee. All the action taken by the Committee is on the same 
plane as the action of any other Committee, that is, to be valid it 
must be approved by the House sitting formally as a House. The 
purpose of the Committee is in general to allow of free discussion 
and amendment of a measure so as to mold it into the most favor- 
able form for presentation to the House. This by no means pre- 
cludes further amendment after the bill is reported to the House 
itself, but is designed to secure the adoption of the best amend- 
ments under the most favorable auspices. The manager of the 

selves reflect the changes which are going on in national life. From their com- 
position one knows whether the Philistines of Silver or the Israelites of Gold 
prevail in the American Canaan. The glory of certain of them is but for the 
passing hour; the importance of others is constant, because from the nature of 
the subjects confided to them their duties are continuous and unvarying. When 
the nation is fighting, the War and Naval Committees and the Ways and Means 
are a ruling triumvirate; in peace these become pack-horses for public improve- 
ment committees and Appropriations. If Captain Grant is hauling cordwood 
into St. Louis or buying hides in Galena, the Military Affairs at Washington is 
leaning back in its chairs with hands in pockets, to what heights will not Appo- 
mattox see both captain and committeemen advanced! 

"Members have become prominent in the House, who, fathoming the cur- 
rents of public interests, have sought through the Speaker membership upon 
committees to which issues of coming importance are to be intrusted. Thus did 
Stephen A. Douglas seek membership on the Committee on Territories in the 
Kansas-Nebraska Question; thus did James A. Garfield gain increased distinc- 
tion in turning at the close of the Civil War from Military Affairs to Ways and 
Means. One of the older committees has stood throughout the century without 
undergoing the expansion which has come, for instance, to (he Elections and the 
Claims; if changes of long-standing policy involve the United States in the 
intricacies of world-wide politics, this Committee on Foreign Affairs may in the 
whirl of increasing business also be found to throw oil the planets of a new 
group." 



02 THE NEW AMERICAN GOVERNMENT 

bill or the floor leader of the majority usually makes the motion 
to go into the Committee, as follows, "I move that the House re- 
solve itself into Committee of the Whole for the consideration 

of House bill number under the five minute rule." The motion 

being carried the Speaker designates a chairman and usually retires. 
Each member is then allowed to speak once for five minutes upon 
each motion before the Committee. As there may be many amend- 
ments and motions made this amounts practically to a full and in- 
formal discussion of any point in the bill. After all the proposed 
changes in the bill have been acted on the manager moves that the 
Committee "rise and report to the House" whereupon the chair- 
man reports, to the Speaker, the bill in its new form. The House as 
a House may then accept or reject the action taken by the Com- 
mittee of the Whole, in fact it frequently happens that important 
amendments or modifications of the Committee's action are made 
at this time. The fact that any action taken by the House formally 
is recorded on the Journal with the names of those voting yea or nay 
has an important influence in inducing some members to vote one 
way in the Committee but a different way in the House when their 
votes must be recorded for public information and telegraphed 
over the country by the public press. The Committee of the Whole 
House like so many of our Committees is taken from the practice 
of the British House of Commons, where it has been in use for 
centuries. 

The Committee of Ways and Means is composed of eighteen 
members; like all legislative committees its membership is divided 
among Republicans and Democrats approximately in the same 
proportion in which the parties are represented in the House. The 
Committee considers all proposed legislation on the raising of 
revenue by taxation or otherwise and the bonded debt of the 
United States. Since as we have already seen, the earliest history 
of the British Parliament shows it to have been an attempt by the 
people to secure some control over the public taxation, the Com- 
mittee on Ways and Means (of securing revenue) in any representa- 
tive government is apt to be the most important. In the United 
States there is an additional reason for its importance. The manu- 
facturing interests of the country have secured the adoption and 
maintenance of a protective tariff system which forms a subject 
of constant discussion. From the passage of the first customs tax- 
law at the outset of our history down to the present day this dis- 
cussion has raged with increasing vigor. Therefore the Committee 
of Ways and Means, established in 1802, has been the storm center 
of the tariff agitation. Next to the Speakership no position is so 
much sought as the Chairmanship or a membership in this Com- 
mittee. As its organization and methods of procedure are largely 
typical of all other committees, it deserves a careful examination. 
The Chairman is usually a man of great prominence in the party. 
His views on the all-important question of the tariff must be 



THE HOUSE OF REPRESENTATIVES 63 

a sound" and orthodox, that is, if a Republican he must favor a high 
tariff, if a Democrat he must advocate a low tax. It goes without 
saying that he must also be persona grata with the leaders, other- 
wise he can expect no chairmanship. If he conforms to these two 
requirements and is at the same time a man of considerable ability, 
his prospects of promotion are indeed most brilliant, for he stands 
before the people of the United States as a personal representative 
of a fundamental issue in American politics. 

The Chairman appoints a paid clerk and assistant clerk with the 
approval of the committee; when a new tariff bill is to be submitted 
to Congress he draws up a general plan apportioning the tariff 
schedules on different classes of imports among the different mem- 
bers of the majority party in the committee. These members draft 
a preliminary scale of rates for their respective classes of goods and 
the whole majority membership is then called together during the 
Summer months and a detailed draft is then made up and com- 
pleted. When Congress meets in December each division or sched- 
ule is then called to the attention of manufacturers and others 
interested and the " committee hearings" are begun. These com- 
mittee hearings are formal meetings at which representatives of 
any view may appear and present their testimony before the com- 
mittee. Such hearings give the committee an opportunity of learn- 
ing at first hand the precise opinions and wishes of the interests 
directly concerned; it has even been customary for such interests 
at times to employ legal talent for the effective presentation of 
their cases. But in all candor it must be said that the meetings 
serve primarily a different purpose. They create in the mind of 
each set of interests the impression that their side has at least been 
given a fair hearing. As for the influence of the hearings upon the 
committee itself, this is in most cases very slight. The draft of the 
bill is fairly well completed before Congress meets and while any 
committee may with the consent of Congress meet during vacation 
period and take evidence, such a procedure is not common. The 
hearings therefore come up after the decision of the majority mem- 
bers of the committee has been made. 

After the hearings the committee reports the bill back to the 
House with a favorable recommendation. 

In this brief description of the genesis of a tariff bill certain im- 
portant points should be noted. 

1. Bills originate with Committees. Any individual may in- 
troduce a bill or resolution; over 30,000 of them are recklessly 
poured into the House during a single term, but those measures 
which receive the serious attention and time of the House are pre- 
pared by Committees. 

2. The majority members of the Committee prepare a draft of 
all important bills far in advance o\ the meeting of Congress. 

3. Open hearings are held in order to give all sides an oppor- 
tunity to present views. 



64 THE NEW AMERICAN GOVERNMENT 

4. The Committee reports favorably on the bill. There may 
also be a report by the minority members, of an unfavorable tenor, 
but this is ignored by the House. 

The Committee on Appropriations, consisting of seventeen mem- 
bers, was established in 1865. Its jurisdiction includes all general 
appropriations for the support of the government, for the District 
of Columbia and appropriations to cover deficiencies. Certain 
special affairs and departments with their appropriations are under 
the care of other Special Committees, e. g., Military Affairs, Naval 
Affairs, Post Office, Rivers and Harbors. 

Membership on the Committee on Appropriations is of great 
importance because of the control and influence over the executive 
branch of the government and over the general disposition of the 
public funds. The Ways and Means Committee touches closely 
the industrial system of the country through its control of the 
tariff but a membership on Appropriations gives a Representative 
the enviable position of a dispenser of moneys. To this Committee 
a number of important branches of the executive departments 
must come for their funds, and all extra expenditures must be ex- 
plained and justified. Its membership therefore confers a peculiar 
influence and power and often leads to higher preferment. It 
therefore ranks third in importance and influence among the House 
committees. 

The Committee on Rivers and Harbors, for reasons similar to 
those already given, offers a highly desirable opening to ambitious 
members. Although it is a comparatively young body, having 
been established in 1883, its jurisdiction over the improvement of 
rivers and harbors gives into its control the commercial develop- 
ment of nearly every important city in the United States. There 
are few large municipalities in the country which are not located 
on some body of water. To keep the water approaches navigable 
involves a great expense in dredging, construction of jetties, break- 
waters, etc. In the competition between different localities to 
secure a proper proportion of trade by land and water, the failure 
to keep the harbor in the best possible state of improvement may 
mean to a city the permanent loss of its trade. The struggle to 
secure a Congressional appropriation for harbor improvements is 
in fact a struggle for existence. The decision as to which localities 
shall be given this much coveted and needful aid rests with the Com- 
mittee. There is another important aspect of the Committee's 
powers. In the language of party politics the States of the Union 
are classified as "solid" or "doubtful." It is the policy of the 
majority party to treat the doubtful States with such careful tact 
and consideration that they will be led to recognize the practical 
advantages of supporting the party in power. There are several 
means of building up the party influence in doubtful States, one 
is by appointments in the Federal service, another by Federal 
appropriations benefiting the various districts of the State. In this 



THE HOUSE OF REPRESENTATIVES 65 

latter part of the plan the improvement of rivers and harbors forms 
the most important feature for the reasons already given. It is 
an essential link in the chain which holds together the party or- 
ganization in doubtful sections. The disadvantages of the plan are 
obvious, in that the " solid" States are apt to have their interests 
woefully neglected. It would seem that the "stalwart" common- 
wealths in both parties pay a disproportionately high price in 
loyalty and in other respects for the actual benefits which they 
derive from party allegiance, while the doubtful States, courted 
by both sides, are given all the choicest advantages which the re- 
sources of the government can place at their disposal. On the 
other hand so long as our government is run by parties it is diffi- 
cult to see how the party managers can be expected to abandon 
the policy of strengthening and expanding the party's influence 
in doubtful territory. The remedy lies largely with the "solid" 
States. They should insist upon a more reasonable and equitable 
distribution of government improvements. Signs of such a change 
of attitude are already visible. The essential point is that in all 
the interplay of interests and influences between different sections 
of the country, between parties, and between different factions 
within a party, the decisive victory is usually won in the delibera- 
tions of some Committee. Because of its control over the com- 
mercial and political destinies of the great urban districts of the 
country, the Rivers and Harbors Committee is rightly regarded 
as one of the highest and most influential assignments in the House. 

The Committee on Interstate and Foreign Commerce, estab- 
lished in 1 89 1 to take the place of the old Committee on Commerce 
created in 1795, has jurisdiction over the most important problem 
now confronting the national government, — the adequate regulation 
of railway, steamship, telegraph and express companies, oil pipe- 
lines, etc. Commerce between the States and with foreign coun- 
tries is under the jurisdiction of the national government. Since 
the formation of the great industrial and commercial combina- 
tions it has been a matter of complaint by the smaller producers 
that the combinations have received special favors from the rail- 
ways, while the smaller shippers have been discriminated against. 
Other serious evils have arisen in the transportation systems of the 
country until the general impression grew up in the public mind 
that the national government must intervene more actively to 
insure fair treatment for all. Great waves of public feeling have 
at various times swept over the country and in response to these, 
laws have been enacted designed to allay public indignation. Sikh 
has been the work of the House Committee on Interstate Com- 
merce. Its economic importance is second only to that of the Com- 
mittee on Ways and Means. 

In addition to these committees which may be called the cream 
of the House organization there are a number of other standing 
committees such as: 



66 THE NEW AMERICAN GOVERNMENT 

Foreign Affairs Coinage 

Military Affairs Elections (3 divisions) 

Banking and Currency Insular Affairs 

Post Office and Post Roads , Irrigation 
Immigration Naval Affairs 

Judiciary Patents 

Agriculture Public Lands 

Claims Territories, etc. 

Committee on Contested Elections. — Until very recent years, 
the bitterness of partisan feeling and animosity has led to a large 
number of contested elections at each Congress. These contests 
involve charges of fraud and corruption or of inaccuracies in count- 
ing the vote. In order to prevent a great sacrifice of the time of 
the House upon such contests, it has been customary to refer all 
of them to three standing committees on contested elections, the 
House uniformly adopting the report of these committees without 
extended debate. 

The total of these standing or permanent committees is 59. The 
members are elected as above described at each new term of Con- 
gress and serve two years until the next Congress comes into office. 
Besides the Standing Committees there are certain Select Commit- 
tees which are temporary bodies chosen for the purpose of making an 
investigation or of conferring with representatives of the Senate 
to secure an agreement of both Houses upon a measure. These 
latter are called Conference Committees. When the Senate and 
House fail to agree on an important bill, a joint or conference com- 
mittee is appointed consisting usually of three members from each 
House. Both sides try to secure an agreement upon the bill with 
as few concessions as possible, but in this "jockeying" process the 
Senate enjoys marked advantages. Being elected for six years 
the Senators know that they do not come up for re-election as soon 
as do the Representatives. The latter body feels most sensitively 
the pressure of public opinion and dares not go before the people 
with a record of failure to enact a popular bill. Therefore the 
House members of the conference are frequently forced to give in, 
particularly to Senate amendments on appropriation bills, for if 
the House allowed the appropriation for the executive departments 
to fail because of mere unwillingness to agree with the Senate con- 
ferees the members of the House must bear the responsibility of 
crippling the Executive. The conference proceedings are secret. 

Conference Committee. — A typical example of the working of 
the Conference Committee may be seen in the tariff debate of 1909. 
The House of Representatives had passed a tariff bill providing for 
reductions on raw materials such as iron ore, hides, leather, coal 
and many other raw stuffs. This bill, prepared under the leadership 
of Chairman Payne of the Committee of Ways and Means was 
called the Payne Bill. When it reached the Senate a new measure 
was substituted for it called the Aldrich Bill, prepared by Senator 



THE HOUSE OF REPRESENTATIVES 67 

Aldrich, Chairman of the Senate Committee on Finance. The 
latter measure contained few reductions and increased the rates 
on many important articles. The Senate adopted the Aldrich 
substitute which was returned "o the House where it was rejected. 
A Conference Committee composed of both Senators and Repre- 
sentatives under the leadership respectively of Senator Aldrich 
and Chairman Payne was then appointed to draft a compromise 
measure which would receive the support of both Houses. This 
Committee met early in July and sat daily until the end of the 
month; it was in these sessions that the tariff of 1909 was really 
made. One of the most interesting and exciting contests in our 
tariff history was waged in this Committee. Every important 
business interest affected by the proposed changes brought its 
full influence to bear upon the conferees; the representatives of 
the farming States demanded a substantial reduction on manufac- 
tured articles. Certain manufacturers' associations urged the re- 
tention of the Dingley rates as provided under the old law or even 
an increase in duties; Senators, Representatives and agents of the 
various interests besieged the Committee members and even the 
Speaker of the House appeared before the Committee on the last 
day of its session. But the climax was reached when the influence 
of the President was brought to bear. Learning of the crisis in 
the Conference Committee, he hurried back to Washington from 
a speech-making tour and began a series of conferences at the White 
House with the leaders of all factions in the Republican Party. To 
all of these he made clear his desire for a moderate reduction in the 
important schedules of the tariff. For some time the President's 
efforts were not successful as it was doubted whether he would 
resort to a veto in case his demands were not complied with, but 
in the last days of the Committee meetings he concentrated all his 
influence on certain schedules, such as lumber, hides and gloves. 
He even intimated that if a bill were passed without reductions 
in these items he would be obliged to veto it and the rumor was 
allowed to circulate without denial, that if necessary another special 
session of Congress would be called to draft a revision of the tariff. 
Despite these efforts, however, Thursday, July 29th, the Republi- 
can members of the Conference Committee, who had been sitting 
in the Senate Office Building behind closed doors, agreed on a 
compromise bill with high duties, and had summoned the Demo- 
cratic members for a formal vote of the Committee when there 
was handed to the Republican leaders a letter from the President 
containing his ultimatum — lower duties or a veto. This marked 
the real crisis in the history of the bill. The party managers must 
either grant the President's demands or open a conflict with him. 
The Democrats again withdrew, while the Republicans held a 
four hours' debate in which the chief manufacturing interests af- 
fected by the reduction made a last determined stand. The in- 
fluence of the President's attitude and the knowledge that he was 



68 THE NEW AMERICAN GOVERNMENT 

able and willing to start a serious conflict in the party finally forced 
an agreement on his program, the Democrats were then recalled 
and the report of the Conference Committee was signed. This 
report was adopted by both House's and signed by the President 
as the tariff act of 1909. 

The new member entering Congress is apt to be surprised, con- 
fused and deeply disappointed by the peculiarities of the Commit- 
tee system. He may have come to Washington with ambition to 
shine as an orator but finds that little or no oratory is possible in 
the House. When a debate finally arises on some important meas- 
ure he discovers that since he is not a member of the committee 
having it in charge, it is extremely difficult for him to secure the 
floor and at most only five minutes is allowed him. Looking over 
his own committee assignments he is further shocked to realize 
that he has been appointed to unimportant Committees in whose 
action the general public has not the slightest interest, such as 
" Expenditures in the Interior Department." Under such circum- 
stances the new member is often discouraged. But it is the history 
of the House that the man who goes to work to master thoroughly 
the business of his committee sooner or later secures recognition 
and is advanced to other committees of greater importance. 

Advantages and Disadvantages of the Committee System. — With 
a House of 435 members and 30,000 bills and resolutions introduced 
in one session, it is clear that some means must be adopted to 
reject the worthless measures and to mold the more important bills 
into proper form for the better information of the House. In Eng- 
land this work is entrusted to a single committee, namely, the 
Executive Cabinet, but in the United States, since the President's 
Cabinet is not allowed membership in Congress, the work must 
be undertaken by Congressional committees separate from the 
Executive. Furthermore, the different sections of the country and 
various economic interests must be " recognized," that is they must 
be given chairmanships in the various committees. It has been 
found impossible to centralize legislative business according to the 
British method, — hence our fifty committees with their conflicting 
schemes of legislation and conflicting claims for the attention of 
the House. Since each committee feels that its prestige depends 
upon securing action by the House and the passage in some form 
or other of a measure which the committee has introduced, the 
House as a whole, particularly in the latter half of each session, 
is harassed and worried by committees demanding the immediate 
adoption of various bills. If we examine the legislation passed at 
any session of the American House, we find that the measures in 
question bear little or no relation to each other. While the British 
Cabinet is able to prepare and carefully work out the plans of legis- 
lation for an entire session and to pass these through the House of 
Commons, our American committees work almost wholly without 
regard to each other. The effects of committee chaos are notice* 



THE HOUSE OF REPRESENTATIVES 69 

able in all parts of our legislation, but in the field of finance, the 
results are especially bad. The Committee of Ways and Means 
prepares the revenue legislation of the country, but seventeen 
other committees in the House prepare the expenditures with- 
out consultation with each other or with the Committee of Ways 
and Means. The executive departments make up their estimates 
of requirements for the coming year and present them to the various 
committees having charge of appropriations, but the latter fre- 
quently pay so little attention to the estimates as to reduce them 
almost one-third or to alter them in other material ways. It has 
therefore become an important matter to introduce greater unity 
among the committees and to secure a greater harmony and co- 
ordination of the measures passed by the House, particularly those 
dealing with revenue and appropriations. The Democrats have 
sought to attain this by electing in caucus a steering committee. 

How Laws are Passed. — The time of the House is divided accord- 
ing to formal rule, certain days being reserved for special action. An 
important bill is usually introduced by the chairman of the commit- 
tee to which it will be referred. The introduction consists of hand- 
ing the bill to the clerk; its title is then read. The bill is thereupon 
referred to the appropriate committee, and either allowed to die 
without further action or is reported back to the House with a 
favorable recommendation, and perhaps in an amended form. An 
unfavorable recommendation is never made, because this would 
only be done for the purpose of killing a bill, and it is much easier 
to defeat a measure by making no recommendation at all, where- 
upon it dies a natural death in the pigeonholes of the committee's 
desk. The committee having drawn up its report to the House, 
the bill is placed upon the calendar for consideration and second 
reading. This is not enough to ensure its discussion by the House, 
however, as there may be a hundred other bills similarly situated. 
The next step is to secure a definite date for its discussion, and this 
must be done by an arrangement with the Speaker and the floor 
leader. The committee having been given a date, the chairman of 
the committee or the floor leader of the majority party announces 
the report of the committee. The printed bill is submitted to 
the members and if it involves an appropriation a motion is made 
to consider the bill in "Committee of the whole House." In this 
meeting of the Committee, the bill is read section by section and 
a number of amendments are usually made and reported to the 
House. The House thereupon adopts or rejects the bill in this 
amended form, thereby passing it on the second reading. It is 
at this point that most bills reported by committees usually fail. 
Either amendments are introduced which completely neutralize 
the real object of the bill or the opposition to the measure is so 
strong as to lead its friends to seek a postponement in the hope oi 
securing a more favorable vote at a later moment. If it runs the 
gauntlet of the second reading successfully, it is apt to be passed on 



yo THE NEW AMERICAN GOVERNMENT 

the third reading without further action, although amendments 
may be and frequently are made even at this late stage. On its 
third reading it is read in toto with all the amendments incorporated 
in final form. It is then passed and sent to the Senate. Usually if 
it is an important bill the Senate makes additional amendments, 
and these must be approved by the House before the measure can 
become a law. If the House wishes to accept the Senate amend- 
ments, it can do so without further formality by passing the bill 
once more in its amended form, and it is then sent to the President. 
If the House refuses to concur in the Senate amendments, a con- 
ference committee is appointed by both Houses. This committee 
reports the compromise form of the bill, which is then passed. If 
in its compromise form as adopted by the conference committee, 
it is still not satisfactory to the House, a new conference is asked 
from the Senate and the committee again tries to secure a satisfac- 
tory arrangement of the measure, which is again presented for 
acceptance by the House. This continues until the measure is 
finally either passed or defeated. By reviewing this long procedure 
through which each measure must pass, we may see how many 
opportunities there are to defeat legislation and how the weight of 
inertia is unfavorable to every bill. It is this very inertia of legisla- 
tive procedure which kills so many measures or offers to their op- 
ponents the opportunity of secretly amending them in such a way 
as to defeat their real purpose. It is also this cumbersomeness of 
the House procedure which necessitates the concentration of power 
and authority in the hands of a few men in order to secure legisla- 
tive action. 

Time-Saving Devices. — By reason of its large size and the great 
number of bills and resolutions which are annually presented for 
action, the House must not only rely upon its Committees, but 
must resort to every possible expedient to save time. Among the 
most important of these devices are: 

(i) The previous question. 

(2) Leave to print. 

(3) Compelling a quorum. 

The "previous question" is a device copied in modified form 
from the procedure of the British House of Commons. It is a mo- 
tion that the question under discussion be immediately voted on. 
This motion is made by a floor leader or manager of the bill for the 
purpose of cutting off all further debate. A call for the previous 
question cannot be argued or discussed, but must be accepted or 
rejected at once by the House. If carried, the question itself — 
that is the section of the bill or resolution which has been under 
discussion — must be immediately put to a vote without further 
debate. It will be seen that this is a powerful means of forcing 
quick action by the House on any bill favored by the majority; 
in fact, it is an invaluable means of suppressing minority filibuster- 
ing and obstruction. Since the previous question has come so 



THE HOUSE OF REPRESENTATIVES 7 1 

largely into vogue, the minority has usually submitted to an agree- 
ment for a vote at a specified time, knowing that if it does not sub- 
mit, the previous question will be called for by some member of the 
majority, and a vote taken at once. 

"Leave to print" is the unanimous permission to print a speech 
in full in the Congressional Record. When a member has been 
granted the floor for perhaps five minutes and his speech is of 
such length as to occupy much more than the time allowed, he asks 
for unanimous consent to print the speech in full. This curious 
system has arisen from the desire of members to send copies of their 
speeches to their constituents, and as this is a desire common to 
the entire membership of the House and as a member is much more 
willing to accept a short allowance of time, provided that he be 
given leave to print, the unanimous consent required is very seldom 
denied. Because of this singular practice, the speeches printed in 
the Congressional Record often represent one hundred times the 
actual extent of the remarks delivered in the House. Abuses of the 
privilege have at various times arisen; one member is known to 
have had an entire book copied in the form of quotations embodied 
in his speech. The abuse has been aggravated by the fact that 
each member is allowed the franking privilege of sending speeches 
and other matter through the mail without postage, and is always 
supplied by the public printer with a large number of copies of 
his speech, without charge. Recently attempts have been made to 
correct this evil, and the printing of books as parts of a speech is 
now prohibited. 

The compulsory attendance of a quorum is not often necessary. 
According to Article I, Section 5, of the Constitution each House 
may compel the attendance of absent members. The minority 
party occasionally attempts to break up a quorum by absenting 
itself from the sessions of the House when by so doing it can bring 
the attendance below the required number. In this way the pro- 
ceedings of the House may be delayed until all or nearly all the 
members of the majority party return to the House. In order to 
prevent this, the Speaker is authorized to send the Sergeant-at- 
Arms with his deputies to search for absent members and compel 
their attendance. 

Officers. — The Constitution lays no restriction upon the Dumber 
of officers which may be appointed by the House and a Large list 
of employes and officials has resulted. The more important of these 
besides the Speaker are the Chaplain, the Clerk, the Sergeant-at- 
Arms. 1 

1 There are also the 
Doorkeeper 

Secretary to the Speaker 
Clerk at the Speaker's Table 
Speaker's Clerk 
Messenger 
Four special Committee Stenographers and one Assistant 



72 THE NEW AMERICAN GOVERNMENT 

Number and Character of Membership. — The membership has 
been enlarged after each census with the exception of those of 1840 
and 1850. The number under the Constitutional apportionment 
was 65; at present it is 435. 

The members are chiefly lawyers and politicians, of middle 
age. The salary is the same as in the Senate, $7,500 annually 
and mileage. Many members have risen from humble circum- 
stances, few are wealthy and nearly all have simple democratic 
tastes. One remarkable feature which stands out in strong con- 
trast to conditions in all other important national legislatures is 
the absence of representatives of the labor class. Even the British 
House of Commons has its group of 60 Labor Party men, exerting 
a strong influence on legislation, but in our House the two major 
parties have hitherto succeeded in maintaining entire control and 
have made efforts to include labor questions in their respective 
political platforms. In recent years, however, a number of serious 
differences have arisen between the majority party leaders and 
the labor unions, and the formation of a distinct group of labor 
candidates seems imminent. Many of the more prominent labor 
leaders now advocate the election of labor representatives to Con- 
gress. In the election of 19 10 the Socialist party elected its first 
representative to the National House of Representatives, Mr. 
Victor Berger of Milwaukee, but he failed of re-election in 191 2. 

The Sessions. — Congress meets on the first Monday of December 
of each year. The House being elected for two years, the life of 
each Congress is composed of two regular sessions. The term of 
office always begins and ends on the 4th of March at 12 o'clock 

Chief Clerk in the office of Clerk of the House. 

Assistant Chief 

Journal Clerk and Assistant 

Two Reading Clerks 

Tally Clerk 

Printing and Bill Clerk 

Disbursing Clerk and Assistant 

File Clerk and Assistant 

Enrolling Clerk and Assistant 

Resolution and Petition Clerk 

Newspaper Clerk 

Distributing Clerk 

Document and Bill Clerk 

Index Clerk and Assistant 

Stationery Clerk 

Docket Clerk 

Digest of Private Claims (3) 

Bookkeeper 

Locksmith 

Seven additional clerks 

Three Assistants in Disbursing Office, Stationery Room and Clerk's Office 

Stenographer to Clerk 

Messenger to Chief Clerk, etc. 
In the office of Clerk of the House there are the clerk and 42 clerks and em- 
ployes. The Doorkeeper has under his direction 49 clerks, pages and employes. 
For the committees there are 75 clerks and assistants. 



THE HOUSE OF REPRESENTATIVES 73 

noon. The first session of the term is called the long session, last- 
ing usually from the first Monday of December until the end of 
June or the middle of July. Although some time is usually lost in 
organizing at the beginning of the session, there is much more op- 
portunity for work, and the real legislation of each Congress is 
usually accomplished at this time. The second session is necessarily 
short because the terms of members expire on the next 4th of March 
and as a rule little is done beyond the passage of the annual ap- 
propriation bills. 

A meeting of the House presents many interesting aspects to the 
visitor. One of these is the marked contrast between the beginning 
and the end of a session. At the beginning there is little or no 
important business ready for action. Most of the committees are 
industriously working out their drafts of bills and the daily sittings 
of the House are taken up by lengthy and uninteresting debates on 
unimportant questions. But when the leaders have prepared their 
legislative program a sudden change comes, the dull and trivial 
measures are unceremoniously whisked off the stage and the real 
bills of the session are brought out. By this time the session has 
advanced far towards Spring, the battle between Committees for 
the attention of the House waxes fiercer, the Senate sends in a mass 
of bills for consideration and the newspapers begin to call for im- 
mediate action on certain measures. The great appropriation 
bills, carrying millions of dollars of expenditures, commence to take 
form and to push aside minor interests, the Senate fails to pass im- 
portant bills sent to it by the House. Conference committees must 
be chosen and their reports acted on. The numberless private 
pension bills pile up until they take all the spare time of the House 
in the evenings. The pressure for legislation grows greater, the 
hot weather sets in with all its depressing effects in Washington, 
and there begins a frantic rush which can be likened only to a 
panic on the stock market. Bills are passed under suspension of 
the rules and are ground out with astounding rapidity. In the 
short session when on March 4th, the last day of the session arrives, 
the President moves down from the Executive Mansion to the 
Capitol bringing with him a force of secretaries and members of 
his Cabinet, to consider and sign bills passed at the last moment. 
On this day the hands of the clock are turned back several times 
as they move on towards twelve, the hour when the Congress dis- 
solves. At last the bills are all passed and signed, the clock is 
allowed to indicate five minutes of 12 and some member of the 
Speaker's supporting clique arises and on behalf of the House ex- 
presses its warm appreciation of his impartial rulings and unfailing 
courtesy! The member further moves a vote of thanks which is 
seconded with Chesterfieldian politeness by the minority leader 
and carried by acclamation amid the greatest enthusiasm, the 
members singing, and generally abandoning themselves to the 
free enjoyment of relaxation from the arduous work of the session. 



74 TH E NEW AMERICAN GOVERNMENT 

Some one starts up a verse of Auld Lang Syne and with one ac- 
cord Democrats and Republicans join in the chorus. In the midst 
of the din the Speaker declares the second session closed and an- 
other Congress has passed into history. 

REFERENCES 

The Manual of the House of Representatives: A Handbook giving full informa- 
tion on procedure and committees. 

L. C. McConachie: Congressional Committees. 

P. S. Reinsch: American Legislatures. 

James Bryce: The American Commonwealth, Revised edition, igio. 

Woodrow Wilson: Congressional Government. 

C. A. Beard: American Government, 2d Edition. 

R. L. Ashley: The American Federal State. 

J. A. Woodburn: The American Republic. 

QUESTIONS 

1. Resolved that the House is the most popular branch of the Federal Gov- 
ernment. Defend either side of this question. 

2. Why were none of the other branches of the Federal Government elected 
directly? 

3. Who is the Representative from your district, and when does his term 
expire? 

4. Which of the following men are eligible to the House of Representatives 
in 1916? Which are not, and why? 

(a) John Doe, born 1893 in Chicago. 

(b) Ricardo Roelo, born in 1880, in Turin, Italy, and naturalized 

in the United States, in 191 2. 

(c) Henry Long, born in Manchester, England, 1881, and natural- 

ized in the United States in 1906. 

(d) William Wilkins resides in Chicago, but runs for election to the 

House in an Iowa district. 

5. Does the Federal law prevent a citizen and resident of Los Angeles from 
being elected a member of the National House from San Francisco? 

6. Explain the difference between the original and the present method of 
apportionment of House members among the States. 

7. What does the Constitution provide as to the time, place and manner 
of choosing Representatives? 

8. How do the States apportion their Representatives among the voters? 

9. What is a gerrymander? Could Congress prevent it? 

$&f Explain the "at large" method of choosing Representatives and its ad- 
vantages and disadvantages. 

11. What is proportional or minority representation? 

12. Congressman Doe resigns from the House of Representatives. How is 
the vacancy filled? 

13. Congressman Roe after serving one year in the House is discovered to 
have been elected through bribery in which he took an active part. What can 
be done? 

14. Why are the lower houses in national assemblies usually given the power 
to propose tax bills? Give some examples. 

15. What practical importance has this privilege in the United States and 
why? Explain the role of the House in impeachment. 

16. What was the intention of the fathers as to the Speaker's influence? 
Why have his powers grown? 

ij. Explain his position before 19 10. 

18. How could he influence the political careers of members? Give examples. 

19. How could he determine legislation? Examples, 



THE HOUSE OF REPRESENTATIVES 75 

Explain the changes made in 19 10 and 191 2. 

Where is the power now lodged that formerly belonged to the Speaker? 

What are the powers and duties of the Committee on Rules? 

What is the purpose of the Committee of the Whole House? 

Select the Committees that you consider most important and explain 

Explain how they are chosen. 

What is a "floor leader"? Why is he necessary, how is he chosen, and 
what are his duties? 

27. Compare the party discipline and control, of the two leading parties. 

28. What is a "caucus"? Why is it necessary? How does it influence the 
freedom and activity of the new member? 

29. What prevents the caucus from establishing the irresponsible control 
by a small clique over the party membership? 

30. Would you favor or oppose a reduction in the number of members of 
the .House? Why? 

31. What is a Conference Committee? Why is it appointed? Explain how 
it acts? 

32. Why has the present complicated committee system arisen? 

fWhat is " the previous question "? Why is it moved and by whom? 
Explain "leave to print." 
What is meant by the recording of the "ayes" and "noes" as provided 
in the Constitution, and when must this be done? What is its purpose? 

36. When is the short session held and why is so little general business trans- 
acted during it? 

37. If you were a member of Congress how would you expect to rise to 
greater usefulness and prominence in the work of the House? 



CHAPTER IV 
THE SENATE 

Ideals of the Senate. — It is in the Senate more than in any other 
part of our government that we may grasp the political thought of 
the fathers. Conservatism, Aristocracy and State Sovereignty are 
not popular to-day, but they were political ideals in 1787. The 
minds of the leaders at that time were occupied with grave fears 
lest the new Federal government, which they were about to estab- 
lish, might overshadow and perhaps destroy the authority of the 
States. The new government, it was hoped, would strengthen 
the union against outside enemies, but no one knew what scheme 
of centralization might develop at any moment. The tendencies 
of the time presented a conflict between the desire for a national 
government and a fear of its growth. We are not surprised to 
find that a political system founded on this conflict of ideas should 
be one in which conservatism was exalted as a fundamental virtue; 
hence the peculiar role of the American Senate, which has probably 
changed less in the last century and a quarter than has any other 
branch of our government. 

Conservatism. — We are accustomed to look on our Supreme 
Court as the most conservative influence of our time, but when the 
Constitution was framed, it was pre-eminently the upper house of 
the Congress that was designed to withstand the storms and shocks 
of popular opinion. Its conservatism was safeguarded in various 
ways. Section 3 of Article I of the Constitution provides a higher 
age qualification, a longer period of citizenship and a longer term 
of office than in the House, also that only one-third of the Senators 
shall retire from office at one time, thereby keeping a majority of 
two-thirds of the members who are experienced and familiar with 
public business. But the contrast between the Senate and the 
House is even more marked than appears in the Constitution. A 
glance about the Senate chamber shows that the members are as a 
rule past middle age. A recent count of the membership showed 
that approximately one-half of the Senators were sixty or over, 
while seventeen of them were over seventy. One reason for this is 
to be found in the peculiar political conditions of the States. In 
order to be elected Senator a man must either possess great wealth 
and be in position to command the influence of the political leaders 
of the State, or he must himself be the political leader, or he must 
be one who enjoys the confidence and trust of the industrial, 
commercial or other interests which may dominate the politics 
of the commonwealth. In order to satisfy any one of these three 

76 



THE SENATE 77 

requirements, a man must have been in the arena of business, the 
law, or politics, for many years. There is thus imposed, from the 
very nature of the conditions a much higher age qualification than 
that required by the Constitution. 

Then too, the small number of members in the Senate, 96 at 
present, acts as an influence towards caution by promoting the 
free discussion of all measures, while the House, through its large 
membership, has been severely restricted and its usefulness im- 
paired. It is noticeable that a measure which may escape amend- 
ments in the House is oftentimes subjected to such a running fire of 
comment, criticism and essential change in the higher body, that 
it can hardly be recognized when returned to the Representatives 
for their approval. Furthermore since many of the Senators are 
men of wealth, their natural inclination is toward the protection of 
stable property interests and their influence is thrown in this direc- 
tion. 1 

Aristocracy. — The statesmen of 1787 were aristocrats; they were 
the leaders of an uneducated populace. The masses of the voters, 
possessing none of the modern means of learning the latest happen- 
ings throughout the country, and being but slightly affected by 
public opinion outside their immediate locality, took their views 
from the leading local politicians, in a fashion which is now seen 
only among the most servile political elements of our large cities. 
The leaders of the time nominated candidates for office at private 
conferences of the select few; they believed in a government of the 
people by "the best" of the people. Therefore they believed also 
in indirect elections and a restricted suffrage. The indirect election 
of the Senate by the State legislature was intended to throw into 
the hands of the best people of the State, the power of choosing 
Senators, and thereby avoid the excitement, agitation and violence 
of a popular election. 

State Sovereignty. — In a time when the States commanded the 
first allegiance of the people and the national interests took second 
place, the sovereignty of the individual commonwealths appeared 
most sacred and its protection was to be carefully safeguarded in 
the Constitution. This was achieved by the requirements of 
Section 3, Article I, that each State should have an equal number of 
Senators and that they be chosen by the legislature. Delaware and 

1 The plan of having two houses in a legislature is so old as to make it seem 
an instinctive idea in politics. The earlier legislatures had an even larger num- 
ber of houses. In the Parliament of Edward I of England at the dose of the 
thirteenth century, there were four bodies, representing the Clergy, the No- 
bility, the Knights and the Town Burgesses. Later the Clergy sat with the 
Nobility, while the Knights and Burgesses voted together. The four "estates" 
thus became two, known as the Lords and tin- Commons. Most of the American 
colonies before the Revolution had two Houses, the upper being the counsellors 
of the Royal Governor, while the lower was a popular assembly. This thought 
of the upper House as a. council for the Executive undoubtedly influenced the 
powers of the Senate and made that body an executive as well as a legislative 
assembly. 



78 THE NEW AMERICAN GOVERNMENT 

Rhode Island were made the peers of the great commonwealth of 
Virginia. The basis of representation was one of the most serious 
problems that the constitutional convention had to face, and 
threatened at one time to break up that body. Under the Articles 
of Confederation all the States had an equal representation in the 
legislature, irrespective of size of population, — a purely Federal form 
of government. In the convention, many delegates, especially 
those from the smaller States, favored retaining this method, and 
objected to any form of representation proportioned to population, 
which had been suggested by the larger States. An assembly 
made up of delegates according to population would have been a 
purely national form of government, and the smaller common- 
wealths opposed this on the ground that it would give the larger 
States too much power in the Government, and would also fail 
to represent the States as separate and individual entities, thus 
encroaching on their sovereignty. The matter was finally referred 
to a compromise committee, which suggested that the lower House 
should be composed of members chosen by popular vote, according 
to population, and the upper composed of two delegates from each 
State, chosen by the legislature. This compromise was accepted by 
the convention, and in this way the national idea of proportional 
representation was blended with the federal idea of retention of 
State sovereignty. 

Qualifications. — The Constitution requires that a Senator shall 
be thirty years of age, nine years a citizen of the United States, and 
a resident of the State from which he is chosen. While these 
qualifications insure a body of mature men, the natural conditions 
under which Senators secure office have still greater force in raising 
the age standard, as we have seen. The fourteenth amendment 
also excludes any person, who having previously taken an official 
oath to support the Constitution, shall have engaged in insurrection 
or rebellion against the United States. Congress has made use of 
its power to remove such disability in the case of Confederate 
soldiers, so that no persons who engaged in the Civil War on the 
Confederate side are now disqualified for that reason. An ineligible 
person may act as a member of the Senate or House if no one calls 
attention to the lack of qualification. Henry Clay was a member of 
the Senate before he was thirty years old. No State may con- 
stitutionally add to the qualifications of members of Congress. 

Each House is sole judge as to the qualifications of its own mem- 
bers. In case of disputed elections, or charges of fraud, or questions 
involving the integrity or the identity of prospective members, 
each House may decide for itself whether it will accept as a member 
the person in question. Each also has the power to punish any 
member for disorderly conduct by reprimand, suspension, or 
otherwise, and even to expel, provided a two-thirds vote is obtained 
in this latter case. To deny the right of admission, a simple major- 
ity vote is all that is necessary. A final qualification, before an 



THE SENATE 79 

elected member may take his seat, is the taking of an oath to sup- 
port the Constitution, before the body to which he has been elected. 

Term. — The term of office of the Senate is six years. Various 
terms were proposed in the constitutional convention; the terms of 
the colonial legislatures varied from one to seven years. It was 
felt that the upper House of the Congress should be chosen for a 
period which would insure abundant opportunity to become 
familiar with the public business, and the fact that the Senate was 
not intended to be a popular body made this longer term acceptable. 
The upper houses in foreign countries have either a six year or a 
longer tenure. In England membership in the peers is hereditary, 
in France the Senate is chosen for six years; in Germany each 
member of the Federal Council or "Bundesrath" retains office 
indefinitely until his State government chooses a successor. But 
in America a six year term is unusual. All our official tenures 
have been made short and elections frequent, in order to keep power 
in the hands of the voters. The term in most of the State legisla- 
tures, as well as in the House of Representatives, is but two years. 
It was made longer in the Senate in order to render that body more 
stable and conservative, to free it from the influence of frequent 
political changes, and to make possible a permanent and consistent 
policy. The greater permanence so attained has proved a strong 
and helpful influence in the work of the upper House. Says Mr. 
Bryce, "A Senator has the opportunity of thoroughly learning his 
work, and of proving that he has learned it." Owing to the Sena- 
tor's political or financial power in his State, he is usually re-elected 
for a second term and frequently for several terms in succession. 
For the same reason a Senator having once been defeated for 
re-election seldom succeeds in regaining his office, since the new 
leader takes it for himself. The clause providing that only one- 
third of the body shall be renewed every two years has worked 
admirably. This division into classes was made by lot when the 
first Senate assembled in 1789. Care was taken not to place any 
two Senators from the same State in the same class. When a new 
State is admitted to the Union, its Senators are placed by lot in 
these classes, only one being added to any one class, and in such a 
manner as to keep the classes as nearly equal in number as possible. 
When a vacancy occurs the new member chosen to fill the vacancy 
is elected for the unexpired term. 

Election of Senators. — The Constitution provided that Senators 
should be chosen by the legislature of each State but did not say 
how this choice should be regulated. The Federal law of 1866 pro- 
vided that each house of the legislature should vote separately. 
In case the houses did not agree, they should conic together in a 
joint meeting after the second Tuesday of the session and elect 
the Senator by a majority vote of all present. While the election oi 
Senators was purposely made indirect in order to remove it from 
Qf people, the same change had begun to take place as in the 



80 THE NEW AMERICAN GOVERNMENT 

choice of the President, that is, the election had gradually become 
direct in reality, although remaining indirect in form. When the 
legislature was to be chosen, every voter knew who would be 
chosen Senator, if certain legislators were elected. In fact, the 
choice of a Senator usually overshadowed all other issues at the 
polls, so that a legislator was often known as an adherent of this or 
that candidate for the Senatorship. 

Meanwhile popular sentiment favorable to the choice of Senators 
by direct election had been steadily growing since the middle of the 
last century. Repeatedly the House of Representatives had 
passed a constitutional amendment providing for the change, but 
the Senate either rejected the proposal or allowed it to die without 
action. There can be no stronger evidence of the unwisdom and 
even danger of our present difficult method of amendment than the 
obstacles encountered by the movement for direct election of 
Senators. For many decades there has been a clear and undoubted 
preponderence of opinion in its favor, yet the opposition of the 
very house whose modernization was to be wrought was sufficient 
to block the movement for half a century. 1 The Western States, 
ever in the vanguard in the search for better methods of govern- 
ment, began to pass laws providing for the expression of popular 
preference for Senators as a guide to the State legislatures in the 
election. Of these laws the Oregon statute of 1904 is a fair type. 

1 Many strong objections were urged against the indirect method of choice. 
The chief of these were the accusation of bribery which frequently occurred in 
Senatorial elections; the danger that the State, in case of deadlock, would lose 
its representation in the Senate, several legislatures were deadlocked for two 
and three years; and the inevitable confusion of State and national issues re- 
sulting from having a national official like a Senator chosen by State legislators. 
The danger of bribery was constantly present nor could it be avoided so long 
as the influence of a very few votes in the legislature determined the choice. 
The situation was always like that arising in a nominating convention where a 
few delegates hold the balance of power as between the different candidates. 
The influence of the Senatorial choice upon State legislation and State politics 
generally was also unfortunate. In our modern system of politics, the political 
leader of the State is often a Senator. To this there can be no valid objec- 
tion. In fact, it is an advantage to have the leader take public office. But when 
his acts are attacked it may become necessary for him to defend himself by 
subordinating the entire policy of the State to the one issue of continuance in 
office. In this way there arises confusion between those matters which affect 
national government and those which are properly questions of State policy. 
There is no reason why the voters at a State election should choose a member 
of the legislature who makes laws on the school system, public health and local 
conditions throughout the State, but at the same time also chooses a Senator 
to vote on the tariff, the currency, our foreign relations and other national mat- 
ters. State questions should be settled separately. Yet this becomes impossible 
the moment that they are mixed up with the election of a national Senator. 

Furthermore aside from the possibility of money bribery the astute leader of 
a small faction either in a convention or a legislature knew the vital importance 
of the votes which he controlled to the conflicting interests in the struggle, and 
he was able to exact concessions and make deals that were injurious to the public 
welfare. The indirect system had long fallen into disrepute throughout the, 
the country. 



THE SENATE 8 1 

This act provided for the nomination of Senators by their respective 
parties in the regular party primaries. Then, in the general election 
following, party nominees were voted for by the people, and the 
candidate receiving the greatest number of votes in the election 
became the " people's choice" for Senator. The same act provided 
that a candidate for the State legislature might, if he chose, sub- 
scribe to one of two statements — either a promise to vote "for that 
candidate for Senator who has received the highest number of the 
people's votes for that position," or he may "Consider the vote of 
the people for United States Senator as nothing more than a recom- 
mendation which I shall be at liberty to wholly disregard if the 
reason for doing so is sufficient." Needless to say, most of the 
legislative candidates signed the former and thereby pledged them- 
selves to vote for the people's choice for Senator. The legislature, 
in this way, gave a formal confirmation to the popular expression of 
opinion and there was in reality a popular selection of Senators in 
the commonwealths adopting this system. Gradually the move- 
ment spread southward and eastward until thirty States had 
provided for informal popular selection. At this point, when it 
became evident that the agitation had reached the dignity of a 
universal movement against the Senate, that body capitulated and 
allowed the passage of a House resolution providing for a con- 
stitutional amendment. The proposal was then submitted to the 
legislatures of the States, approved by the necessary three-fourths, 
and officially proclaimed by Secretary of State Bryan, May 31, 
1913, as Article 17 of the Amendments. Its provisions are as 
follows: 

"The Senate of the United States shall be composed of two 
Senators from each State, elected by the people thereof, for six 
years; and each Senator shall have one vote. The electors in each 
State shall have the qualifications requisite for electors of the 
most numerous branch of the State legislatures. 

"When vacancies happen in the representation of any State in 
the Senate, the executive authority of such State shall issue writs 
of election to fill such vacancies: Provided, That the legislature of 
any State may empower the executive thereof to make temporary 
appointments until the people fill the vacancies by election as the 
legislature may direct. 

"This amendment shall not be so construed as to affect the 
election or term of any Senator chosen before it becomes valid as 
part of the Constitution." 

Both Senators and Representatives are obliged by Federal law 
to make public their campaign expenses for both nomination and 
election. 

Exceptional Position of the Senate. — Since the Senate embodied 
most faithfully the political ideals of 1787, — conservatism, aristoc- 
racy and State sovereignty, — it was natural that the trainers should 
wish to give that body as much influence as possible in the govern" 



82 THE NEW AMERICAN GOVERNMENT 

ment. Its position was made one of exceptional authority, higher 
than either the President or the House, — it is first, a legislative 
body co-equal with the House excepting on finance bills; second, it 
is a court ordained to try cases qf impeachment; third, it enjoys 
extensive and important executive powers and can thereby take 
part in treaty-making and in the administration of the law. As a 
legislative body it is supposedly on a par with the lower House, 
except in the case of bills for raising revenue, which according to 
Article i, Section 7, must originate in the House; but in reality it is 
a much more influential assembly, in all forms of legislation, than 
is the lower chamber. It is a common occurrence for the Senate 
to attach important amendments to appropriation bills and to 
compel the House to accept these amendments. This it can do 
because the House having a shorter term of office must be the first 
to come up for re-election and must bear the brunt of public indigna- 
tion if important appropriation bills or other measures are allowed 
to fail through a disagreement between the two bodies. The House 
members knowing this accordingly give way. This applies to all 
important measures to which the majority party is committed. 
If the party cannot bring the two Houses to an agreement its 
pledges are not fulfilled, it must suffer, and the Representatives are 
naturally the first to feel public disfavor. 

The Senate is well aware of this advantage and makes the most 
of it. As a body, however, it seldom arrays itself openly against 
party or popular measures for any great length of time. It may 
amend and modify an important bill or delay its passage or resort to 
numerous other expedients of committee procedure to defeat 
legislation but is seldom placed in the disadvantageous position of 
the English House of Lords when the latter attempts to defeat a 
popular bill which is resolutely pushed by the House of Commons. 
In such a case the entire machinery of the government and the 
force of public opinion are lined up against the upper House and the 
issue soon becomes a conflict between the people and a privileged 
class. It was such a struggle which led the Liberal party to amend 
the constitution of the Lords in 191 1 and deprive it of its absolute 
veto power. The fact that our Senate avoids such contests is 
another reason for its continued supremacy in legislation. Power, 
like mercury, tends to flow together. As between the Senate and 
the House one must dominate. In all European countries except 
Germany the lower House has won the struggle for mastery because 
it is directly chosen by the people. It has championed their cause 
against hereditary rights and aristocratic privileges, as represented 
in the upper chamber. But in the United States the upper House 
has kept its superiority, by reason of the unusual ability and train- 
ing of its members, by the free discussion of bills in the Senate 
which is impossible in the House, and by those peculiar constitu- 
tional prerogatives and exceptional privileges which have just been 
outlined. 



THE SENATE &$ 

In impeachment, the Senate's position is that of a court. The 
House of Representatives, as we have seen, passes the resolution of 
impeachment, and a committee of Representatives is appointed to 
prosecute the case. This Committee employs counsel, the evidence 
is prepared, and, at a time agreed upon, the Senate, presided over 
by the Vice President or the Chief Justice, hears the case, giving the 
accused also the right to be heard, to employ counsel and summon 
witnesses. In the impeachment trial of President Johnson in 1868, 
every partisan and factional influence was brought to bear, much 
bitterness of personal feeling was aroused and a large vote in favor 
of conviction was finally secured, but the total failed of the neces- 
sary two-thirds majority by a single vote. Since this great trial it 
has been generally conceded that the remedy of impeachment has 
little practical significance, but is to be considered solely as an 
extraordinary measure. Only nine impeachment trials have been 
held by the Senate in the history of the government: the accused 
persons being William Blount, a Senator, in 1799; John Pickering, 
a U. S. District Judge, in 1804; Samuel Chase, Justice of the U. S. 
Supreme Court, in 1805; James H. Peck, a U. S. District Judge, in 
1831; W. H. Humphreys, a U. S. District Judge, in 1862; Andrew 
Johnson, President of the United States, in 1868; William W. 
Belknap, Secretary of War, in 1876; Charles Swayne, a United 
States District Judge, in 1905; and Robert W. Archibald, a judge 
of the Commerce Court, in 19 13. Of the nine, three, Pickering, 
Humphreys and Archbald were removed from office. In the case of 
Blount the offence with which he was charged, that of receiving 
money for an appointment to the United States Military Academy, 
was admitted by him but the Senate held that the process of 
impeachment was not intended by the Constitution to apply to a 
Senator or Representative. The ground of this decision was that, 
historically, impeachment had always been used as a protection 
against executive officers. A Senator being a legislator could 
therefore not be considered an "officer" in the sense intended by 
Section 4 of Article II. As the Senate is the final tribunal in all 
cases of impeachment, the Blount decision remains as a precedent. 

As an executive body, the Senate approves treaties and appoint- 
ments. It does this in "executive session," which means that all 
spectators and newspaper correspondents are temporarily excluded 
from the Senate Chamber and no record of debates is kept, only the 
final results of the Senate's action being made public. It is doubt ful 
if such secrecy is desirable or necessary at present. The main 
object of secrecy is not attained, as news of the proceedings leaks 
out in one way or another. 

In its approval of treaties (by two-thirds) and important appoint- 
ments (by a simple majority) the Senate exerts a political control 
which has already been discussed in connection with the President's 
duties. 

Through its treaty power the Senate exercises a strong influence 



84 THE NEW AMERICAN GOVERNMENT 

on foreign relations, and recent events seem to point to an extension 
of this influence. Its Committee on Foreign Relations takes an 
active part in fixing the terms of foreign agreements, being con- 
sulted by the President on all important steps. 

The co-operation of the Senate with the State Department has 
become less and less harmonious in recent decades owing to its 
resentment at the leading role played by the President and all the 
executive departments. From the time of Cleveland's second 
administration down to the present many treaties have failed of 
ratification in the Senate including such important agreements as 
those on international arbitration, the purchase of the Danish 
West Indies, and a number of commercial reciprocity treaties 
strongly advocated by President McKinley. Others have been 
delayed by opposition in the Senate to such an extent that some 
embarrassment has been experienced by the President, notably in 
the Cuban reciprocity, the San Domingan debt and the Canadian 
reciprocity treaties, while still others have been so amended as to 
cause their abandonment by the Executive. 

Many of the less important matters that have come up in our 
relations with foreign nations have always been settled by the 
President through executive agreements or protocols, carried out 
without senatorial action. The Senate attacked this method of 
dealing with foreign nations, by requesting the President to submit 
the San Domingo protocol of January 20, 1905, to it for ratifica- 
tion. 1 After considering the matter, the Senate failed to ratify this 
agreement, but the President immediately carried out its terms to a 
large extent, through the use of his executive powers, and in 1905, 
he was attacked in the Senate for so doing. His course was, how- 
ever, strongly defended by several Republican members and 
eventually approved by the Senate. 

This brings up the interesting practical question, what determines 
the victory in a struggle between the President and the Senate over 
the ratification of a treaty? The advantage is with the President 
because he can propose the substance and form of the treaty, in 
short he can choose his own ground and the exact time and way in 
which to open the question. If he proposes something which is 
strongly popular with the voters he is in position to force the 
Senate leaders into line even against the wishes of that body. An 
instance of this is the Canadian reciprocity treaty of 191 1, already 
mentioned. After the Senate had refused to pass the treaty at the 
session of 19 10, an extra session was called to consider the measure, 
in April 191 1. Meanwhile the majority party had been chastened 
in spirit by the unfavorable elections of 19 10, the Senate was still 
Republican but by a small margin and the House was strongly 
Democratic. With the pressure of public sentiment in the Missis- 

1 The protocol provided for the collection of San Domingan customs duties 
by an American official and the use of the funds so collected to pay interest on 
the San Domingan debt. 



THE SENATE 85 

sippi Valley, the West, and the South, to back him, the President 
returned to the charge and forced the treaty through the Senate. 
It was afterward defeated in Canada. 

The power of the Senate is undoubtedly greater to-day than it 
was at the beginning of the government, although Senators often 
argue to the contrary. In the earlier days, Senators were looked 
upon as ambassadors of their respective States, limited in their 
individual discretion, and subject to instructions from the legisla- 
ture which had elected them. Until about 1825 the Senate was not 
regarded as of equal importance to the House of Representatives, 
or even to the State legislature. Men often preferred leadership in 
their State legislatures to what was considered "the somewhat 
empty honor of the senatorial dignity." This condition was 
changed mainly in the three decades preceding the Civil War, due 
to the presence of a few brilliant statesmen like Clay, Webster, 
Calhoun, Benton and Sumner. During this period the Senate 
established its claim to intellectual leadership of the nation in 
political matters, and became famous among the legislative bodies 
of the world. It began to assert its power in the struggle against 
Jackson, and although it did not succeed in gaining the upper 
hand at once, its influence was augmented, and it was able to 
force the weaker men who followed Jackson to admit its power. 
After the war, the Senate was able to wield its authority even more 
completely and succeeded in defeating the independent policy of 
Johnson, and in imposing its views on Grant, largely on account of 
the latter 's inexperience in political affairs. Cleveland was more 
successful than his predecessors in overcoming the opposition of the 
Senate, and the struggle became even more marked during the 
administration of Roosevelt. 

Political leadership in a State is usually held by one of the two 
Senators and, where authority is equally divided between the two, 
an amicable arrangement is made to divide the State territorially, 
each Senator having control of appointments and other matters 
in his section of the commonwealth. Before the political revolu- 
tions which began in 1908 the dominance of each Senator in his 
party was so complete and unquestioned that the political ma- 
chines of the two parties were able to "steam roller" all opposition. 
But with the coming of more flexible and unsettled conditions in 
the party management, there is greater room for men with some 
tendencies towards independence of thought and action. 1 

1 The influence of practical politics on the character of the Senate is well 
depicted by Prof. Paul S. Reinsch in his American Legislatures, page 1^0: "The 
advantageous position of the senators with respect to the control of party 
machinery was recognized as soon as the Senate had made good its powers over 
the federal patronage. Professional politicians, whose chief stock in trade is the 
procuring of public office, soon developed a vivid interest in the senatorial 
position. Before long, men who were supremely successful in the organizing 
v>i the political fortes of the State, claimed for themselves the high honor and the 
potent influence of the senatorship; and they often gave the position of junior 



86 THE NEW AMERICAN 

Senate Committees. — Each Senator is a member of from six to 
eight committees. As most of the members are re-elected from 
term to term, promotion in committees is slow, being dependent 
upon new vacancies. The new member is usually given unimpor- 
tant appointments. The influential committees are Appropria- 
tions, Finance (corresponding to the Ways and Means in the 
House), Commerce (including Shipping), Interstate Commerce, 
Foreign Relations, Post Offices and Post-Roads, Judiciary, Naval 
Affairs, Military Affairs. The new Senator is not apt to find his 
name on any of these; rather will he be entrusted with the care of 
such committee subjects as, the Condition of the Potomac River 
Front at Washington, Indian Depredations, Civil Service and Re- 
trenchment, Disposition of Useless Papers in the Executive Depart- 
ments ! 

Under the rules the committees are chosen by ballot, but in 
practice each party, in its caucus, makes up a list of its members 
for committee appointments, the majority party conceding to the 
minority a number of members on each committee in proportion to 
the strength of the two parties in the body. Each caucus having 
decided the allotment of its party members a motion is introduced 
that the committees of the Senate shall consist of the members 
named on the list. This motion being contrary to the rules which 
provide for election of the committees by ballot, it is necessary to 
have unanimous consent in order to suspend the rules. Such con- 
sent is uniformly given. In the party caucus it is customary to have 
the committee " slate" for the party made up by a committee on 
committees which until 19 13 was appointed by the chairman of 
the caucus, but is now elected. 

The chairmanship of each committee is given to the member 
who has served upon it continuously for the longest term. A con- 
tinuous service in the Senate is in this way of great practical ad- 
vantage to a member in that he obtains a larger number of com- 
mittee chairmanships. It is apparent that this system, by depriving 
the Vice President of the power to name committees, prevents him 
from securing the same influence which the Speaker of the House 
has attained. The Vice President is merely an impartial chairman 
to preside over the debates. It is also clear that those States which 
re-elect their Senators term after term soon secure representation 
on the important committees and a large number of committee 

senator to a personal ally whose chief political qualification consisted of liberal 
campaign contributions. The direct control which the party machinery exer- 
cises over the state legislatures, and over the workings of the caucus system, 
makes it essential to the senator, if he be not himself the boss, at least to court 
the good graces of the party magnates. He must be a master of practical politics. 
Indeed, most senators, often against their personal likings, find that the major 
portion of their time is taken up with the nursing of political support at home. 
This development has introduced into the Senate a class of prominent politicians, 
who are often lacking in those qualities of statesmanship which the traditions 
of the Senate demand, who are simply shrewd players of the intricate game 01 
local politics, and who have introduced commercial ethics into political life." 



THE SENATE 87 

chairmanships and thereby wield a commanding influence in na- 
tional legislation. 

As a matter of fact, the New England and Eastern States have 
always been the most consistent in their policy of re-electing their 
Senators for term after term, while the Western States more often 
elect a new man every six years. This largely accounts for the 
dominance of New England in the Senate, a dominance of which 
Westerners complain. It is very seldom that a Senator from one 
of the New England States is not re-elected, if his party continues 
in power, in fact he generally holds office until he retires, or dies. 
He gains in influence not only through the automatic rule that 
important committee places arc determined by seniority, but also 
through the accumulation of experience, a better knowledge of the 
work of the government, 1 and thus a greater fitness and ability for 
dealing with public questions. With the breaking up of the solid 
Republican phalanx of ultra-conservatives in the Senate, some of 
the members of longest terms of service have been retired, and the 
adoption of the direct method of choice shows a disposition both 
east and west to change the membership of the upper House more 
frequently. 

The Steering Committee. — The Senate majority feels, although 
to a less degree, the same need for arranging and systematizing its 
legislative program as exists in the House, and has adopted the 
same means of doing so; viz., the Steering Committee. This body 
is not elected by the majority caucus but is largely a self-constituted 
gathering of the principal leaders. Its work is to determine which 
bills shall be pressed for passage at each session. Since, as in the 
House, the natural inertia of procedure tends to defeat a bill, it is 
usually not necessary for the Steering Committee to determine 
which bills shall be defeated. Its sole function is to select some 
important fundamental measures to which the party is pledged 
and to secure sufficient unanimity of opinion among the members 
to obtain the passage of its bills. This committee forms the em- 
bryo of a Senate machine or organization, but it does not use its 
influence in the same obnoxious, arbitrary way that was so charac- 
teristic of the old House machine. In fact its principal weapon in 
all attempts to secure unanimity among the majority of members 
is the appeal which it makes for the support of the party interests. 
The measures which it does not support are left to the individual 
judgment of each Senator. 

Senate Procedure.— Unlike the House, the Senate allows full 
freedom of debate; each member may speak as long as he chooses 
on any subject and as often as he can secure the tloor. Such a rule 
of debate has serious disadvantages. On the one hand it allows a 
higher standard of courtesy and etiquette in the legislative body; 

1 Former Senator Beveridge lias explained this influence of seniority in an 
admirable article "The Control of the Senate," Saturday Evening l\\s!, June 4, 
1909. 



55 THE NEW AMERICAN GOVERNMENT 

it is not possible for one man as presiding officer to choose who shall 
speak, what measure shall be discussed and what views shall be 
expressed on these measures. Furthermore the freedom of dis- 
cussion gives full play to individuality and the development of real 
statesmanship. The membership of the Senate includes many men 
of the highest ability and in urging the claims of their respective 
interests and constituencies they show brilliant qualities as advo- 
cates, orators and strategists in debate. In this respect the Senate 
ranks far above the House and is the peer of any legislative body 
in the world. In listening to a Senate debate, one is impressed by 
the maturity, dignity and admirable forensic training as well as 
the substantial qualities of the participants. But on the other hand 
the Senate is now nearly four times the size contemplated by the 
fathers of the Constitution and the privilege of unlimited debate 
shows certain marked weaknesses; a small clique of members may 
hold up legislation desired by the majority and, by talking ad 
libitum, may prevent the passage of a measure to which the party 
is pledged. This abuse is not confined to either party but is common 
to both and is employed by the opponents of both bad and good 
measures. It is a highly obnoxious habit now regarded as a tradi- 
tional right by the members of the upper House. A noted instance 
of this was Mr. Quay's speech on the tariff in 1894 which lasted 
for three days, when by arrangement with his friends he managed 
to prolong his " remarks" to such a point that the managers of the 
majority party were forced to change the pending bill to suit his 
wishes. A similar case occurred in the debates on the repeal of the 
compulsory silver purchase clause of the Sherman coinage act in 
1 89 1 and 1892. At this time a small group of Senators, represent- 
ing silver money interests, banded themselves together to defeat 
the repeal, and although the country was rapidly plunging into a 
great financial and industrial panic, they successfully prolonged 
the debate against the measure advocated by the majority party, 
until the disastrous crisis of the following year swept over the coun- 
try. The impression made upon the public mind by these two cases 
was so painful that it is doubtful if the " courtesy of the Senate " 
as the privilege of unlimited debate is sometimes called, would sur- 
vive another such strain. The majority party has it in its power 
to remedy this abuse by the adoption of a rule of procedure pro- 
viding for the "previous question." Thus far no such action has 
been taken because all the members feel the necessity of maintain- 
ing the greatest possible freedom of debate. The disadvantages 
of the procedure in the lower House, where the "previous question " 
rule prevails, also serve to deter Senators from adopting a similar 
rule. 

For many years the Senate has sought to lessen the abuses of free 
and unlimited discussion by a series of voluntary agreements among 
members as to the time for taking votes on various measures. 
The leading advocates and opponents of a bill make an amicable 



THE SENATE 89 

arrangement for a vote on a given date, with the understanding 
that each of the members shall take his own opportunity to present 
his views meanwhile. This arrangement is then ratified by the 
Senate and the measure finally passed or defeated at the time set. 
But it will be noticed that such a means of preventing useless waste 
of time depends entirely upon the good will of all the Senators. 
If a small faction of the membership should oppose the arrange- 
ment it could not be carried out. On all measures involving extreme 
partisan feeling, the minority is thereby enabled to defeat final 
action if it is willing to go to the extreme of "filibustering." 

Officers. — The officers and employes of the Senate are numerous, 
the "pay roll," like that of the House, being somewhat inflated. 
The Vice President of the United States is ex-offlcio President of 
the Senate, there are also the President pro tempore of the Senate 
who is elected by the body from among its members and serves 
regularly when the Vice President is absent, the Chaplain, the 
Secretary and a large staff of assistants, the clerks and messengers 
of Committees, the Scrgeant-at-Arms and Assistant, the Post- 
master, the Superintendent of the Folding Room and Assistant 
and the Chief Engineer and assistants. Of these, the President 
pro tern is the only member of the body. 1 

Low Salaries. — The Senator's salary is $7,500; the Vice President 
receiving $12,500. Each Senator is also entitled to an allowance 
of $1,200 for clerk hire and a mileage of 20c per mile in going from 
and coming to each session. The same allowances are made for 
members of the House of Representatives. Numerous but fruit- 
less efforts have been made to reduce them, particularly the mile- 
age which is admittedly excessive. Members draw their mileage 
even when an extra session ends immediately before the beginning 
of the regular session and they are thus prevented from going home. 
Some members even go so far as to appoint a relative or figurehead 
as clerk, draw the $1,200 paid for this purpose and employ a ste- 
nographer at half the amount. These allowances are looked on as 
harmless perquisites of the legislative office and are winked at 
by both Houses. The salary is far below what it should be, at 
least $10,000 should be paid in both Senate and 1 louse. The neces- 
sary expenses of a member of either branch of Congress are so great 
that the present salary frequently does not cover them. While 
it is possible that a very poor man might find the salary cf $7,500 
sufficient for his needs, a Representative or Senator who aspired 
to some influence in the legislative councils would be unable to 
make both ends meet, without some private income. Since 1800 

1 A full statement of the details of Senate ami House organization and per- 
sonnel with committee assignments, clerical force, residences, etc., is found in the 
annual Congressional Directory. Both the Senate and the House publish at the 
close of each session a history of Senate (House) hills ami resolutions, from which 
the action taken by each House on every measure introduced can he accurately 
traced. This is a valuable source of information as to the details of procedure 
on particular bills. 



90 THE NEW AMERICAN GOVERNMENT 

both parties in the government have laid great stress upon demo- 
cratic simplicity and lack of ostentation. It has been considered 
a virtue to keep down salaries even to the point of parsimony. 
This was eminently fitting among a nation of pioneers in a new 
country. But with the general rise in the standards of living and 
of income in other positions, it cannot be wise to pay the national 
legislators proportionately on such a low plane. The necessity for 
a higher salary is less felt than in the House, because of the greater 
honor of Senatorial rank. All observers have commented on the 
attractiveness of Senate membership. Its political influence, social 
prominence, more secure tenure, and the marked ability of its 
members have made membership in that body, a prize to which 
many of the ablest and most gifted men in the political circles of 
all the States aspire. Some of its critics have called it a the finest 
club in America." 

New Influences in the Senate. — Until recent years our upper 
House has been known as the stronghold of ultra-conservative in- 
fluences. Both the Democratic and Republican parties have sent 
to that body able lawyers and successful business men trained in 
the old school of constitutional law and politics. The political 
leader in each State, the successful corporation attorney, the 
wealthy manufacturer, or mine owner have been conspicuous 
figures in our upper House since the Civil War. It was natural that 
such men should act with caution in the political struggles of the 
national arena, and that the measures proposed by the Senate, and 
its influence on House bills should be conservative in tone. Such 
an influence is needed in every government, and the Senate has 
performed a function of the highest value in examining the proposals 
of the House, and asking regarding each measure such questions 
as — 

Is it constitutional? 

Does it fit in with the other laws on the subject? 

Does it interfere with existing interests in any way? 

These queries can only be put and answered properly by a body 
of men possessing the peculiar training of our Senators. But all 
virtues have their limit. By its absorption in defending vested in- 
terest, the Senate gradually began to ignore the welfare of the 
masses. Certain of its members were known to represent the manu- 
facturing interest, others the mining interest, while a large group 
were known as railroad Senators. The votes of any of these men 
on a given measure could be as accurately forecast as the opinions 
of their clients and it was not long before this unwholesome condi- 
tion began to dawn on the public mind. Having gained a reputa- 
tion of hostility to progressive laws, the reorganization of the 
Senate became only a question of time. This change has been ef- 
fected along two lines, — the direct election of Senators and the 
change in its personnel. Responding to the popular feeling that 
economic and social progress must not be held up by the upper 



THE SENATE 9 1 

House, there have been elected to that body a number of younger 
men whose sympathy, aims, and ambitions are radically opposed 
to the fixed traditions of former times. Indiana, Wisconsin, 
Minnesota, Oregon, Iowa, Kansas, Colorado, Nebraska, and other 
Western States have sent to Washington to represent them, men 
whose tendency was not to stop with the question — is it safe or is 
it constitutional? but who have rather concentrated their attention 
on the new programs of law-making and government regulation 
for the benefit of the farmer, the small manufacturer, the small 
shipper on the railways and the masses of the people generally. 
The advent of these men from both Democratic and Republican 
States has marked a turning point in our national development and 
a new line-up of forces in the political arena. 

The significance of the new movement lies in the change which 
it has wrought not only in both parties but in the character and 
temper of the Senate; that body has been brought nearer to the 
people and has avoided the hostile public movement which directed 
itself against the House of Lords in England. By representing 
popular interests equally with those of concentrated wealth, by 
standing for the small business men and wage earners as well as 
the more effectively organized economic groups, the Senate has 
lost little if any of its real conservatism. The patriarchal role which 
the upper House has always played in every government requires 
that the elder statesmen shall survey with fatherly eye the entire 
membership of the political family, the weak as well as the strong. 
In resuming this role the Senate has strengthened its control over 
the government and fortified its influence as a bulwark against 
impracticable and dangerous forms of law. Its work is greater and 
more important in the new era which we are now entering than 
in the past, — the task of analyzing with clear legal and business 
insight the many crude proposals for government regulations, of 
selecting those which are feasible and progressive and of translating 
them into the accurate, precise and valid terms of national law. 
Such a task demands the full measure of ability, ripe experience 
and legal training possessed by the Senate; if properly fulfilled it 
also means a new ideal of conservatism. 

REFERENCES 

The Congressional Directory. 

Paul S. Reinscii: American Legislatures. 

The History of Senate Bills and Resolutions, published by the Senate. 

Paul S. Reinscii: Readings on American Federal Government. 

C. A. Beard: Readings in American Government. 

G. H. Haynes: Direct Election of Senators , Johns Hopkins University Studies. 

QUESTIONS 

1. Who are the Senators from your State, and when do their terms expire? 
I, What are their committees ami which measures are they actively sup- 
porting? 



9 2 THE NEW AMERICAN GOVERNMENT 

3] Why was the Senate originally given so much power and influence in 
the government? 

4^ Explain the ideals of the "fathers " in establishing the Senate. 
■0$i How did they make the Senate conservative? 

6T Why did it seem desirable to make the Senate somewhat aristocratic 
and how was this accomplished? 

7. Why was so much weight laid upon representation of the State as a 
State and how was this arranged in establishing the Senate? 

8. Explain the difference between the National and the Federal ideas as 
they are woven together in our National legislature. 

9. Explain which of the following men are eligible to election as Senator 
from Illinois in 19 16 and which are not, and give the appropriate portions of 
the Constitution: 

(a) Henry Higginson, Jr., born of Massachusetts parents in Boston, 

1885, removed to Chicago 19 14. 

(b) Jan Jansen, born in Christiania 1884, immigrated to Minneap- 

olis in 1900, was naturalized an American citizen in 1906 
and removed to Springfield, Illinois, in 1914. 

(c) Boris Romanof, born in St. Petersburg 1886, migrated to New 

York in 1889, was there naturalized in 19 10, and removed 
in 19 1 1 to Chicago. 

(d) Richard Roe, born 1889 of American parents in Evanston, 

Illinois, where he has since continued to reside. 

10. Senator X is accused of bribery in securing his seat in the Senate. How 
can his colleagues constitutionally remove him from the body? 

11. John Doe satisfies the constitutional qualifications for admission to the 
Senate but it is discovered after his election that several years before he had 
forged a check. Can he be denied admission to the Senate? Reasons. 

12. The legislature of Pennsylvania passes a law providing that Senators 
from that State in the future must own not more than $50,000 worth of prop- 
erty. Is the law constitutional? Reasons. 

13. Compare the term of the Senate with that of foreign upper houses. 

14. Explain the advantages of a long term. 

15. Compare the present and former method of electing Senators. 

16. In a debate you are asked to defend the old method. Outline your 
arguments. 

17. You are called on to defend the new system. 

18. How did the Western States previous to the 17th Amendment establish 
a popular choice of Senators? 

19. What is the difference between the Senate and House methods of choos- 
ing presiding officers? Reasons for difference. 

20. How are vacancies in the Senate filled under the 1 7th Amendment? 

21. How does the legislative power of the House differ from that of the 
Senate according to the Constitution? How does the Senate's legislative power 
exceed that of the House in practice and why? 

Explain the Senate's position and duties as a court of impeachment. 
What is the extent of punishment in case of impeachment? Illustrate. 
Why are Senate bills better prepared than House measures as a rule? 
What is meant by "executive session" of the Senate? 
Explain the exact control of the Senate over treaties and any recent 
uses which the Senate has made of this power. 

27. Which are the important committees in the Senate and how are they 
chosen in practice? 

28. Why is it an advantage for a State to have its Senators serve for several 
terms? 

29. Explain the work of the Steering Committee of the Senate. 

30. Explain the most important points of difference between the Senate and 
House procedure in debate. 

'31J Why is " filibustering " so easy in the Senate? 

32. What is the salary and the allowance of the Senator? 



THE SENATE 93 

33. A law was passed in 1909 raising the salary of members of the Cabinet 
from $8,000 to $1 2,000. Can Senator X, a member of the Congress which passed 
this bill, resign after one year's service in the Senate and accept a Cabinet posi- 
tion? What clause of the Constitution applies? 

34. A United States Senator while in attendance at a session of the Senate 
assaults a man in the streets of Washington. Can he be arrested? Suppose he 
commits murder, can he be arrested? What clause of the Constitution applies? 

35. During a debate in the Senate, one of the members falsely charges the 
head of a great corporation with perjury and bribery. What redress has the 
latter? What clause of the Constitution applies? 

36. Besides legislative powers, what executive and judicial powers does 
the Senate exercise? 

37. Explain the most valuable service performed by our Senators in law- 
making and show how the body is peculiarly adapted to its duty. 

38. Point out recent changes in the attitude and personnel of the Senate 
and the reasons for them. 

39. Prepare a short essay on the value of the upper House in American gov- 
ernment. 



CHAPTER V 

THE POWERS OF CONGRESS 
TAXATION AND FINANCE 

The powers of Congress have been the great battle-ground of the 
Constitution. Around them have surged the legal combats of 
Strict and Broad Construction, of Tariff and Taxation; of Nullifica- 
tion, of Secession, of the Currency and finally of Commerce Regula- 
tion and Corporation Control. Each of these great conflicts has 
arrayed the statesmen of the time in two opposing schools, one 
holding that Congress had the constitutional power needed, the 
other contending that it had not. In each struggle too, there has 
been some vital interest of the nation at stake and on the answer 
to the question "Has Congress the power" has hung the decision 
whether we should go forward or backward. We can now see that 
the men who contended for a broad interpretation, and who sup- 
ported the powers of Congress, were fighting for national progress 
and that their success meant a freer, stronger national government 
to cope with the problems of the time. It is interesting to see 
that during this century and a quarter of struggle many foreign 
nations have adopted federal constitutions, notably Canada, 
Germany, Switzerland, Australia, South Africa and Mexico, and 
all of these without exception have conferred upon their federal 
authorities far more power than ours possessed. 

The powers given to Congress in 1787 were those that seemed 
absolutely necessary to answer the immediate needs of that time. 

Taxation, borrowing, and coinage. 

Regulation of foreign trade and commerce between the States. 

Maintenance of an army and navy. 

These were the points at which the Articles of Confederation 
had broken down. Any new government must control these es- 
sential points of sovereignty if it was to be truly national in char- 
acter and to hold the respect and loyalty of the people. But since 
that time no new authority over business conditions has been con- 
ferred by any amendment of the Constitution and Congress is now 
struggling to solve our industrial and commercial questions by 
means of a group of powers that are no longer adequate to the task. 
As each decade passes it becomes clearer that the Federal authority 
must be substantially increased. 

Taxation and Finance. — The taxing power is by general consent 
the most vital and important of all government prerogatives. 
Without it no national government can long exist. All the early 
conflicts between the King and the barons in England centered at 

94 ' 



THE POWERS OF CONGRESS 95 

this point, and the rise of English political liberty dates from the 
time when the Parliament won for itself the right to be consulted 
in taxation. The first national Douma or Assembly of Russia had 
been in existence just seven days when it demanded this essential 
authority from the Czar. Our own Congress, under the Articles of 
Confederation, had been obliged to rely upon the contributions of 
the States for its uncertain financial resources; it might levy a tax 
upon the States but they paid or not as they saw fit. It is not 
strange that a government without resources of its own could not 
long command respect. To remedy this weakness it was provided 
by the new Constitution that Congress should have power "to lay 
and collect taxes, duties, imposts and excises." 

The effect of this change was far-reaching. First, it gave the 
national government an independent source of revenue, yielding 
abundant funds for all its expenses; the dignity and power of the 
nation were thereby at once raised to an unquestionable plane. 
Henceforth it could plan and undertake its administrative duties 
without fear of bankruptcy or humiliation. Second, it has made 
possible the protective tariff system by which the national manu- 
facturing industries have been built up and developed. The first 
Congress under the new Constitution passed in 1789 a tax law 
with the following preamble: "Whereas, it is necessary for the 
support of government, for the discharge of the debts of the United 
States and the encouragement and protection of manufacturers 
that duties be laid on goods, wares and merchandise imported, 
Be it enacted, etc." 

Third, it has enabled Congress to regulate many industries by 
means of taxation; for example the manufacture and sale of alco- 
holic liquors, oleomargarine, etc., have been heavily taxed by 
Congress in such a way as to control to a large extent the produc- 
tion and use of these articles, and by the Corporation Tax of 1909 
the Government has secured information about the finances of all 
the principal companies operating in the United States. 

Under the constitutional taxing power a number of practical 
questions have arisen : — 

What may Congress tax, and what may it not tax? 

What may the States tax, and what may they not tax? 

What May Congress Tax? — Congress may in general tax any- 
thing except the State governments and their agents. It may not 
tax the State governments because by doing so it might seriously 
interfere with them, and it is the purpose of the Constitution to 
preserve and protect the States as well as the national government. 
A good instance of this principle Is soon in the case oi Tax Collector 
v. Day, 11 Wallace, 113; 1S70. Here the Supremo Court ruled 
that Congress could not tax the salary oi a State official because it 
might obstruct and hinder the necessary work oi the State. Day 
was a State Judge and the Court declared thai a Federal tax upon 
his salary would be in effect an interference with the State's judi- 



q6 THE NEW AMERICAN GOVERNMENT 

cial department. If the Federal Government could tax the salary 
of such officials it might become impossible for the State to carry 
on its affairs. Each State is supreme in its own sphere and must 
not be hindered or obstructed by the Federal Government. 

A different ruling was made in the case of Veazie Bank v. Fenno, 
8 Wallace, 533; 1869. Here Congress had taxed the circulating 
notes of State banks with the apparent purpose of discouraging 
their circulation, and the question arose, — could Congress inter- 
fere in this way with the privileges granted by the State government 
to its local banks? The Supreme Court decided that Congress had 
the constitutional authority to do so because the Constitution had 
granted it not only the taxing power, but also the control over the 
national currency, and in pursuance of this control Congress had 
established a national banking system which should issue bank 
notes. This new national currency authorized by the Constitution 
must be made supreme in order to displace the currency issued by 
the State banks. If Congress had the right to issue such currency 
it had the right to prevent other forms from interfering with it and 
this it had chosen to do by a heavy tax of 10% on State bank notes. 
The law was accordingly held to be constitutional under the author- 
ity to levy taxes and to provide a national currency. 

Can Congress Tax the Funds of a Municipality? — In United 
States v. The B. & O., 17 Wallace, 322; 1873, the railway company 
had an agreement with the city of Baltimore by which part of the 
earnings of the company were to be paid to the city, at regular in- 
tervals. The Federal Government sought to collect a tax from the 
entire earnings of the railway and this the company protested, 
claiming that it need not pay a tax on that part of its funds which 
were due to the city of Baltimore. The Supreme Court upheld the 
company and declared this part of its earnings to be exempt from 
Federal taxation on the ground that a city was an agent of the 
State government and that the funds of a municipality, no matter 
where located, were not subject to Federal taxation because by 
taxing the revenues of a city the Federal Government might em- 
barrass and hinder its operations and to that extent interfere with 
the State. Accordingly, following the same principle which later 
guided the decision in Pollock v. The Farmers' Loan & Trust 
Company, 158 U. S. 601; 1895, the tax was declared unconstitu- 
tional as applied to such a city fund. 

Can Congress Tax a Business in which a State Engages? — This 
problem arose in the South Carolina liquor dispensary system; here 
the State had prohibited the private sale, either wholesale or retail, 
of intoxicating liquors within its borders, and had taken up this 
sale itself by a dispensary system, turning the profits therefrom into 
the State treasury. Upon the Federal tax collector's attempt to 
levy the usual internal revenue duty upon sales of intoxicants, the 
State officials claimed exemption from the tax on the ground that 
the State could not be interfered with by the Federal taxing power. 



THE POWERS OF CONGRESS 97 

In the subsequent suit, South Carolina v. United States, 199 U. S. 
437; 1905, the Supreme Court held that the Federal internal revenue 
tax on intoxicating liquors was a tax, not upon State governments, 
but upon an ordinary private business, and that even if a State 
chose to engage in this business, the levy of a tax was not upon the 
State but upon the business. Such a levy must be regarded not as 
an interference with the State government but as an ordinary rev- 
enue measure to which the State authorities subject themselves 
when they engage in the industry. The tax could therefore consti- 
tutionally be applied to the dispensary system managed by South 
Carolina. 

Can Congress Tax a State or City Bond? — In 1894 Congress had 
levied a tax on incomes, including the income or interest from city 
bonds. The owner of such a bond claimed that the law was uncon- 
stitutional because it interfered with the borrowing power of the city, 
and the city was a part of the State government. This claim brought 
up for decision in the Supreme Court the case of Pollock v. The 
Farmers' Loan & Trust Co., 158 U. S. 601 ; 1895, in which the Court 
held the Federal income tax to be unconstitutional. The city as 
part of the State government was obliged to borrow money in order 
to carry out its powers. It did this by selling bonds. If its borrow- 
ing power could be interfered with by the Federal Government in 
any way the city would be prevented from transacting the business 
confided to it by the State and from performing its duties. This 
would be an interference with the State powers by the Federal tax- 
ing power and therefore contrary to the purpose of the Constitution. 
The Federal tax on the interest on municipal bonds was, in sub- 
stance, a tax on the bonds themselves, and this was a tax on the 
State government 's power to borrow. Hence the Act was unconsti- 
tutional. The reasoning here, on broad lines, is the same as in Col- 
lector v. Day, n Wallace, 113; 1870. The national government 
like the State governments, is supreme in its sphere. Congress must 
therefore not reach out over into the sphere of the States and use 
its taxing power to hinder them in any way. 

From these rulings it is clear that all the necessary and proper 
means by which the State carries out its duties are free from tax- 
ation by Congress. With this exception, however, Congress may 
tax all the property of the people. It is even possible that the na- 
tional government and the States may tax the same property. 

Express Constitutional Limits: — But the Constitution imposes 
certain limits and restrictions upon the way in which national taxes 
may be levied; all of these were intended to secure fair treatment 
for all the States and complete freedom of trade among them, 

(a) Direct taxes, except those on incomes, must be levied among 
the States in proportion to population. (Article i, Section 0; and 
the 16 th Amendment.) 

(b) Indirect taxes must be uniform throughout the United States, 
(Article 1, Section 8, Clause 1.) 



98 THE NEW AMERICAN GOVERNMENT 

(c) No tax shall be laid on articles exported from any State. 
(Article 1, Section 9, Clause 5.) 

(d) No preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another, nor shall 
vessels bound to or from one State be obliged to enter, clear, or pay 
duties in another. (Article 1, Section 9, Clause 6.) 

All of the above restrictions apply only to Federal or national 
taxes, (a) The rule requiring direct taxes to be levied according to 
the population of the various States has caused great difficulty. 
What is a direct tax? The answer to this question has changed 
greatly in the recent history of our government. In the case of 
Hylton v. United States, 3 Dallas, 171, the Supreme Court decided 
that a carriage tax was not a direct tax. In Springer v. The United 
States, 102 U. S. 586, the Court declared that "direct tax" includes 
only capitation or head taxes and land taxes, these being the 
forms of direct taxation accepted as such at the adoption of the 
Constitution. But in Pollock v. The Farmers' Loan Company 
(re-hearing 158 U. S. 601, decided in 1895) the Court reasoned that 
the national income tax levied by the Act of 1894 was direct. 
That part of the tax which was laid on the rents from real es- 
tate must necessarily be direct because there was no substantial 
difference between a tax on land and a tax on the rents from land. 
Since land taxes were admittedly direct, taxes on rents from land 
must also be direct. Next arose the question, is a tax on income 
from personal property, including invested funds, etc. also, direct? 
The Court decided that it was. Congress had never attempted to 
lay a direct tax in precisely this form but that did not prove that 
Congress could not do so. The words, "direct tax" should be in- 
terpreted in their plainer meaning, and from this standpoint, the 
Court ruled that a direct tax included taxes on the income from per- 
sonal property. On these grounds the income tax of 1894 was direct 
and it therefore should have been apportioned according to the pop- 
ulation of the various States; as it was not apportioned in this way 
as required by Article I, Section 9, Clause 4, of the Constitution, 
the law was unconstitutional. Since by this ruling the income tax 
for the first time became a direct tax, we then had the following 
classes of levies which the Court considered direct: 

Capitation, or so much per head of the population. 

Levies on land or on the rent of land. 

General income taxes. 

The decision also made it difficult if not impossible for Congress 
to levy any income tax upon an equitable basis. The amount of in- 
come in the various States is not in proportion to the population; 
therefore, a tax which must be raised according to the numbers of 
people rather than according to the amount of income in each State, 
would be an unequal burden upon the respective States. 

The Sixteenth Amendment and the New Income Tax. — The Pol- 
lock decision having repealed the income tax law of 1894, an agita- 



THE POWERS OF CONGRESS 99 

tion immediately arose for a change in the Constitution and eighteen 
yearsTater, in 1913, the required ^^^^^ 
tures ratified an amendment providing that -The Congress shall 
have power to lay and collect taxes on incomes from whateve 
source derived, without apportionment, among the several States, 
and without regard to any census or enumeration. Pursuant to this 
Amendment Section II of the Tariff Act of October 3, 1913, provided 
for an income tax of 1% on all incomes over $3,000 and an addi- 
tional tax on incomes of $20,000 and over. This additional tax was 
calculated as follows: 

between 20,000 and 50,000 *% 

75> 000 2 & 



50,000 

75,000 100,000 

100,000 250,000 



3% 
4% 



250,000 500,000 5/0 

above 500,000 ° '° 

In all cases both the normal tax and the additional tax are laid only 
on the surplus above the figures mentioned. For example, an in- 
come of $3,700 would pay 1% on $700; an income of $25,000 would 
nay 1% on $22,000, plus 1% on $5,000. A married man living with 
his wife is entitled to an additional exemption of $1,000. 

Returns are made by all taxable persons on the first day of March 
of each year and are paid on or before June 30. In this tax he km 
adopts the principle of " collection at the source," by which the tax 
on the rent" or profits or mortgage interest, or similar income, is de- 
ducted by the agent, or company, paying it and transmitted to the 
collector of internal revenue. Appeals from the decision , of the local 
district collectors of internal revenue may be made to the Commis- 
sioner of Internal Revenue at Washington. Corporations compan- 
ies and associations pay a tax on their net income also; and in order 
to avoid double taxation, their shareholders are exempted from 
paving any tax on the dividends from such companies. 
P In order to ascertain net income, the following deductions arc 
made from gross income :-First, the ordinary necessary <q"""" 
maintenance and operation of business, second he losses actually 
sustained within the year and not compensated b> '^ance; to 
includes a reasonable allowance lor deprecation and W«U and tear, 
third, interest on indebtedness of the company, fourth, axes bach 
taxable person or company makes a return to the collector. Assess- 
mSts are based upon 'these returns and further upon the addmonal 
information which the collector in any district may J0ns.d«nec«. 
sary to secure, in case there is reason to believe that a fala ^statement 
has been made. The assessments .1 corporations are Sled in t In 
office of UK' Commissioner of [nternal Revenue and constitute pub. 
lie records, but arc open to inspection only upon the ordei Ol UM 

President The purpose of this provision is to enable the govern- 



IOO THE NEW AMERICAN GOVERNMENT 

ment and other authorities to secure accurate information as to cor- 
porate finances and conditions. Collectors and deputy collectors, 
agents and clerks, and other employes of the government are for- 
bidden to divulge or make known to persons not concerned, the op- 
erations, apparatus, methods of work, etc., of any manufacturer, 
or the sources of income, profits, losses, and expenditures of any 
person, or corporation, or to permit any income return or copy 
thereof to be seen by any person except as provided by law. The 
provisions of the income tax law governing corporations and com- 
panies supersede those of the corporation tax. 

The Constitutionality of the Corporation Tax. — Meanwhile the 
corporation tax had been ruled on by the Supreme Court in Flint 
v. Stone Tracy Co., 220 U. S. 611, 191 1; here Congress had levied an 
excise tax on the corporate method of transacting business, the tax to 
be measured by the net income of the corporation. The taxpayer 
claimed that the levy was, in substance, an income tax and under 
the previous ruling in the Pollock case, an income tax being direct, 
must be apportioned among the States according to population, 
whereas Congress had failed to apportion the corporation tax ac- 
cording to the population of each State. He therefore contended 
that the corporation tax was direct and not apportioned and hence 
unconstitutional. The Supreme Court, however, held that the tax 
was not an income or direct tax, but rather a levy upon a peculiar 
form of organization, to wit, the corporation, and that Congress, 
wishing to tax the peculiar advantages arising from this form of 
doing business, was in substance not levying a direct but an indirect 
excise tax. If so, such a tax, being indirect, need not be apportioned 
according to population. The tax was accordingly held to be valid 
and now nets the Federal Government about $30,000,000 yearly. 
In its new form as a part of the direct income tax it is also constitu- 
tional because of the 16th Amendment. 

(b) Indirect taxes "must be uniform throughout the United 
States." By uniformity is not meant the same rate on all goods 
but the same rate on the same goods throughout the country, — i. e., 
territorial uniformity. The "United States" however, means, not 
a distant territory or possession of the nation, but only that part 
of the country which is located on the mainland ; so for ex- 
ample a tax may be levied in Porto Rico, the Philippines, or 
Hawaii, with a different rate from that levied on the mainland in 
California or Pennsylvania. This question arose after the Spanish 
War in connection with the new territories, and it was decided that 
the term " throughout the United States " did not apply to terri- 
tories or distant dependencies, but meant throughout the States. 1 

1 In Downes v. Bidwell, 182 U. S. 244; 1900, this question came up in the form 
of a duty paid, under protest, by Downes, the owner, upon certain oranges con- 
signed to him in New York from Porto Rico. Under the act of 1900, creating a 
government for Porto Rico, Congress had provided that goods shipped from 
Porto Rico into the United States should pay 15% of the foreign customs duty 
to be collected on imports into the United States. Downes objected to the 



THE POWERS OF CONGRESS IOI 

Whatever the soundness of the legal reasons for such a decision 
may be, the decision itself is of the greatest practical benefit in the 
administration of our colonial possessions; it leaves Congress free 
to deal with each dependency according to the special conditions 
existing there. 

(c) The reason for prohibiting taxes on articles exported from 
any State is to prevent the destruction of the foreign trade of the 
States and also to avoid possible discrimination. The colonies had 
suffered severely from attempts made by Parliament and the Crown 
to suppress their exports and it was desired to make such oppres- 
sive measures impossible. Here again the territories and depend- 
encies are not included, and an export tax may be levied for ex- 
ample on articles leaving the Philippines. 

(d) In declaring that no preference should be given to the ports 
of one State over those of another, the Constitution aimed to pre- 
vent discrimination by means of administrative rules and port 
regulations as well as by general legislation. In 1787 the States 
did not trust each other to the same extent that they now would, 
hence their efforts to exclude all opportunity for unequal regulation 
and favoritism. The rule does not apply to territories or depend- 
encies, but only to ports of the States. Furthermore, the coast- 
wise trade from one port to another must be free of taxation. It 
was to establish this freedom from State taxes that the new Con- 
stitution was proposed as far back as 1785. To protect this inter- 
state trade from burdensome Federal taxes it was provided that 
the national government should not compel vessels engaged in 
such trade to pay duties when passing from one State to another. 
This clause together with the prohibition of export taxes and of 
State taxes on imports and exports insures the complete freedom 
of trade between the States. 

The State Taxing Power. — The States in their turn have also 
found their taxing powers limited by the Constitution. In general 
they may tax anything except 

tax, claiming that Porto Rico was a part of the United States in the sense of 
Article I, Section 8, providing that "all duties, imposts and excises shall he 
uniform throughout the United States." The Court held that this part oi (ho 
Constitution, together with the clauses forbidding preferences between ports 
of different States and forbidding taxes on articles exported from a State, were 
all originally placed together in drafting the Constitution hut were later sepa- 
rated in arranging the document for the purpose of style. Their object was 
identical, to prevent Federal discriminations between different parts oi the 
Union. They were not to apply to districts outside the Union which might 
become subject to the regulation of Congress. "Throughout the United 
Slates" therefore meant and still means throughout the states and ten: 
(or embryo states) and does not include the dependencies. Accordingly C 
gross has the power to tax the dependencies as it -cos tit. 

"We are therefore of opinion that the [stand oi Porto Rico is a territory 
appurtenant and belonging to the United States, hut not a pan of the United 
States within the revenue clauseso! the Constitution; that the Poraker Act is 
constitutional, so far as it imposes duties upon imports from such island, and 
that the plaintiff cannot recover back the duties exacted in this case," 



102 THE NEW AMERICAN GOVERNMENT 

interstate commerce, 

imports and exports, 

the tonnage of ships entering their ports, 

and the agencies of the national government. 1 
Tonnage taxes and import and export duties are expressly pro- 
hibited in the Constitution (Article I, Section 10) but the prohibi- 
tion of a tax on agencies of the Federal Government while not 
expressly mentioned in the Constitution, is implied by the nature 
of the government itself. This prohibition was first declared by 
Chief Justice Marshall in the celebrated case of McCulloch v. Mary- 
land, 4 Wheaton, 316; 18 19; in which a State tax upon the notes of 
the United States Bank was declared unconstitutional. It was held 
that the United States Bank had been chartered by Congress as a 
means of carrying out certain national powers; it was therefore an 
agency of the national government. If the State of Maryland 
could tax such an agency, it might by excessive taxation prevent 
the national government from exercising its powers within the 
State boundaries. Said the Chief Justice, "the power to tax in- 
volves the power to destroy." If Maryland could tax the United 
States government all the other States could do the same and the 
government could be taxed out of existence. Such was clearly not 
the intention of the framers of the Constitution, hence a State tax 
on the national government agencies of any kind is unconstitu- 
tional. The ruling in this case corresponds with the Federal tax 
case of Collector v. Day, 11 Wallace, 113 ; 1870, already mentioned. 

With these exceptions, the State is free to levy on whatever it 
chooses, but it may not tax so heavily as to confiscate property, 
nor may it single out special kinds of property for unusual taxation 
in such a way as to amount to discrimination and thereby deprive 
persons of the equal protection of the laws, as guaranteed in the 
14th Amendment. These questions of State taxation have become 
much more important in recent years; a more complete explanation 
of the principles involved and of their application to private busi- 
ness is given in the Chapter on Constitutional Protections of 
Business. 

The General Welfare Clause. — In two parts of the Constitution 
the expression " general welfare" is used, — the preamble states that 
one of the purposes of the new government is to "promote the 
general welfare," and Section 8 of Article I gives to Congress the 
power to tax "to provide for the common defense and general 
welfare of the United States." These general phrases have been 
more widely misunderstood than any other part of the instrument, 
although their meaning is clear upon a moment's reflection. They 
have wrongly been supposed to confer on Congress a separate and 

1 For inspection purposes such as quarantine, etc. they may levy a tax on 
imports or exports to an amount sufficient to pay the cost of the quarantine 
or inspection, but any surplus of the taxes over and above this amount must be 
paid into the national treasury, Article I, Section 10. 



THE POWERS OF CONGRESS IO3 

distinct power, — that of promoting the general welfare. If Congress 
could promote the general welfare in addition to its other powers, 
there would be practically no limits to its authority. It might 
establish schools, regulate marriage and divorce, change the laws 
of contract and govern manufacturing and farming conditions; but 
all these subjects are in reality regulated only by the States, not 
by Congress. What is the true meaning of this clause? The words 
"general welfare" explain the purpose of taxation. Congress 
may tax in order to provide for the general welfare. This is readily 
seen from the other purposes of taxation given in the same clause, — 
"to pay the debts and provide for the common defense." The 
! whole bearing of the phrase "general welfare" becomes clear if we 
'■ insert the words "in order to," — Congress has power to tax in 
order to pay the debts, and in order to provide for the common 
defense and the general welfare of the United States. When there- 
fore we see it stated that a power of Congress, other than taxation, 
is derived solely from the "general welfare " clause, we may know 
immediately that such a power does not exist. 

Regulation of Business by the Taxing Power. — The taxing power 
is usually construed in a broad free spirit by the courts, and Con- 
gress is given the benefit of the doubt in disputed questions of con- 
stitutionality. This has enabled the Federal Government to use 
its taxing authority to regulate in many ways that would other- 
wise be illegal. For example, by the acts of 1886 and 1902 Congress 
laid a tax of 10 cents per pound upon artificially colored oleomar- 
garine. The law was passed on the urgent insistence of the farm- 
ing interests, which naturally sought to prevent the manufacture 
and sale of imitations of butter. This at once raised the question, 
can Congress do, by the taxing power, what it has no other con- 
stitutional authority to attempt, that is, to discourage the manu- 
facture and sale of any article? If Congress has no authority over 
manufactures nor even intrastate sales, how can it use taxation 
as an indirect means to accomplish this end? In the leading case 
on this point a licensed dealer in oleomargarine, McCray, had pur- 
chased for the purpose of re-selling, a 50-lb. package of oleomar- 
garine artificially colored to resemble butter, upon which internal 
revenue duties of only 3^c per lb. had been paid. When prosecuted 
for failure to pay the full 10c tax he claimed that the latter was 
unconstitutional because it was an attempt to discourage the pro- 
duction and sale of oleomargarine, which as a purpose was uncon- 
stitutional, since it was a regulation oi manufactures. But the 
Supreme Court (McCray v. U. S., 195 U. S. 27; 1004^ refused to see 
in the law any attempt to regulate, and held that the levy was well 
within the taxing powers oi Congress; "the judiciary cannot re- 
strain the exercise of lawful power Oil the assumption that a wrong- 
ful purpose or motive has caused the power to be exerted. There- 
fore we find no merit in the argument that the purpose oi Congress 
in levying this tax was to suppress the manufacture oi oleo and not 



104 THE NEW AMERICAN GOVERNMENT 

to raise revenue." The Court ruled that the laws mentioned were 
in the nature of an excise tax and Congress undoubtedly has the 
power to levy excises so long as they are made uniform throughout 
the United States. It was within the authority of Congress to 
select the objects on which the excise should be laid. McCray had 
further claimed that the ioc per lb. tax was so heavy as to destroy 
the business and thereby " deprive him of his property without due 
process of law," contrary to the 5th Amendment. This also the 
Court overruled, declaring that if the power to levy excises was 
constitutional, as was clear, then the fact that a business or product 
which was heavily taxed necessarily suffered some disadvantage, 
did not render the tax unconstitutional. This case is a fair illus- 
tration of the many decisions which have upheld and strengthened 
the power and free discretion of Congress in regulative tax laws. 

Double Taxation. — Since both Congress and the States may tax 
the citizen's property, there is a possibility of double taxation. 
The Constitution does not forbid this, but both national and State 
authorities have seen the wisdom of avoiding it as far as possible. 
By tacit arrangement they have divided their systems of taxation 
according to the following plan : Congress taxes imports and cer- 
tain articles of luxury, such as tobacco, malt and spirituous liquors, 
playing cards, etc., also a number of products the use of which is 
frowned on by public opinion, such as adulterated butter, mixed 
flour, filled cheese, oleomargarine, etc. The States on their side 
tax real estate and personal property, and until 1909 they enjoyed 
the entire field of taxation on corporations, but in that year the 
Federal corporation tax was enacted, marking a departure from the 
general line of division of taxable property between the two govern- 
ments. It was followed in 19 13 by the income tax. 

While this separate distribution of the sources of revenue be- 
tween State and Nation has been in the main a highly satisfactory 
one, it seems doubtful if it can continue for any length of time. 
The ever-growing demands that the Federal Government depart 
from its former narrow field, are now so insistent and strong that 
the States must apparently soon give up their exclusive control over 
the taxation of real estate and personalty. The reasons for this 
are deeply significant of the distinctly social trend of public opinion 
which has been slowly forming in the United States. The American 
people are no longer interested solely in finding the easiest means 
of securing the most revenue for the government; they are now 
devoting more attention to those taxes which will shift the weight 
of government expense to the wealth of the country. 

Social Use of the Taxing Power. — The one thought which runs 
through the proposed inheritance tax, the income tax, the corpora- 
tion tax, and all the newer forms of levy is that the chief burden 
of taxation should be lifted from the poorer classes and made to 
rest upon the holders of securities, those who have incomes above 
a certain figure, and those who inherit property. As this social 



THE POWERS OF CONGRESS 105 

method of taxation comes more into the foreground in the national 
government, Congress is obliged to put aside the old division be- 
tween State and national sources of revenue and to reach over into 
the field formerly occupied alone by the States. Two other forces 
are also influencing Congress to seek new forms of property for 
taxation, viz. — the gradual reduction of the tariff and the spread 
of prohibition sentiment among the central and western States. 
The final effect of a lowering of the tariff is to reduce the receipts 
from that source. As the anti-liquor sentiment grows in strength, 
the government receipts from internal revenue must also fall off. 
The government now gets nearly one-fourth of its total revenue 
from alcoholic liquors. Looking ahead only a few years we must 
therefore be prepared to derive an increasing part of our national 
revenues from other forms of taxation. The liberal and radical 
sentiment of the time is determining the direction in which these 
new taxes must lie. The high cost of living has only served to 
strengthen this sentiment and to accelerate the change. The 
steady drift of public opinion towards graded taxation, that is, 
towards levies which fall with a higher percentage upon the well- 
to-do, is in the main a progressive tendency but we must remember 
that every "graded" tax should if possible be collected, if only to 
a trifling amount, from the lower incomes also. Every citizen 
should have an interest in the government and with that interest 
he should have the sense of responsibility that goes with bearing his 
share in its cost. The growth of a great mass of voters who had lost 
this sense of responsibility would be a calamity. The business ex- 
ploitation and price extortions practiced by privileged combines 
and cliques have tempted us in this direction but we cannot achieve 
progress by exempting the poorer voter from all taxation; rather 
must we bring to both rich and poor alike a keen sense of the match- 
less service that our government can perform if it is properly sup- 
ported and financed by all classes, and is in this real sense a govern- 
ment of all the people. 

National Finances. — The magnitude of the national budget, the 
sources of revenue and the general uses to which the public funds 
are put may be seen from the following: 

SUMMARY OF NATIONAL FINANCES, 19 14 

Total receipts from Customs $292,320,000 

" " " Internal revenue $380,041,000 

Net " " Postal Service S 4.3 

Miscellaneous $ 62,311 ,000 

Total Receipts $730,050,000 

Total expenditures for Civil Establishment 81 70,530,000 

" " " Army and Public Works $173,522,000 

" " " Navy $139,682,000 

" " " Tensions $173,440,000 

" " " Indian Service 5>ooo 

Interest on Debt 

Total Expenditures f 



106 THE NEW AMERICAN GOVERNMENT 

Cost of collecting customs for fiscal year ending June 30, 

1914 035 cents per dollal 

of revenue collected, or 3.3% 

Cost of collecting internal revenue for fiscal year ending 

June 30, 1913 0152 " " " 

of revenue collected, or 1.5% 

OUTSTANDING AMOUNT OF BONDS 

Consols of 1930, 2% $646,250,150 

Loan of 1908-1918, 3% 63,945,460 

Loan of 1925, 4% 118,489,900 

Postal Savings Bonds, 2}4% 4,635,000 

Panama Canal Bonds, 2% 84,631,980 

" 3% 50,000,000 

Total interest bearing debt $967,953,000 

Non-interest bearing debt $368,729,000 

Outstanding currency notes partly covered by deposits in the 

Treasury $1,574,000,000 

Total Debt $2,91 2,000,000 

Collection of Taxes. — This work is entrusted to two main agencies 
of the Treasury Department — the Division of Customs and the 
Collector of Internal Revenue. The Customs Division has juris- 
diction over taxes on articles imported into the United States from 
abroad. Under this division are the 49 customs districts with the 
main ports of entry on the coasts of the United States and on the 
northern and southern boundaries. At each of these is a collector 
or deputy collector of customs with various deputies, surveyors, 
weighers, etc. Each customs district is divided into a number of 
inspection districts, including the various piers, wharves and sta- 
tions within the district. There are also numerous bonded ware- 
houses under the supervision of the collector of the port, for the 
purpose of storing goods before duty is paid. The deputy collector 
of customs having examined the goods imported and announced 
the tax which is due, the importer may appeal from his decision to 
that of the collector of the port and, should the decision of the latter 
be adverse, the importer may again appeal to the Secretary of the 
Treasury, and finally to the United States Board of General Ap- 
praisers, a body composed of ex-ofncio members appointed from 
the Treasury Department, who are technical experts especially 
qualified to interpret the law. Should any questions as to the legal- 
ity of the decision of the latter arise, such question may be brought 
in the United States Customs Court created by the Act of 1909, 
but in matters of executive discretion the judgment of the Board 
is final. 

The amount of import duties collected in the course of a year 
varies widely according to our prosperity, but the receipts from 
this item always form a chief source of Federal revenue, as appears 
in the statement already given above. 

Until 1913 there was some waste in the collection of customs 
owing to the political pressure brought to bear on Congress and 



THE POWERS OF CONGRESS I07 

the President to keep in existence ports of entry which did not pay 
expenses, in order to provide political positions for partisan workers. 
In 191 2 Congress authorized the President to reorganize the cus- 
toms service with a view to cutting down the total cost of collections 
by at least $350,000. This reorganization he completed by his 
order of March 3, 1913. The order abolishes all the independent 
sub-ports except those which are needed, that is, which will at 
least pay expenses; it rearranges the salaries of collectors and sur- 
veyors, deputies, etc.; abolishes unnecessary positions and does 
away with the former system of paying officials in part by fees; all 
surveyors of customs except those at the seven principal sea-ports 
are abolished. A great saving is effected in this way and the whole 
organization is made more flexible and responsive to the instruc- 
tions and arrangements of the Secretary of the Treasury. The 
invoices of goods shipped into the United States must be sworn to 
as correct in valuation, by the importers, but there is a constant 
tendency to undervalue cargoes in order to escape taxation. 1 
Smuggling is prevented chieriy by the revenue cutter service and 
the secret service divisions. The cutters patrol the coast and seek 
to prevent the clandestine landing of goods outside of the regular 
customs ports; they also watch the lightering of vessels at anchor. 
The Commissioner of Internal Revenue has for his province the 
collection of the heavy taxes imposed by Congress upon the manu- 
facture and sale of oleomargarine, " renovated" butter, flour mixed 
with adulterants, " rilled" or adulterated cheese, the duties upon 
tobacco products and distilled spirits and fermented liquors, play- 
ing cards and the income tax. The area of the United States is 
divided into sixty-four collection districts, with a collector and 
deputies in each. The internal tax is collected chiefly by the sale 
of stamps which must be placed upon each original package of the 
article as manufactured. These stamps are then required to be 
cancelled, that is, marked or defaced in such a way as to prevent 
their being used again. Simple as this administration appears, the 
utmost attention and vigilance of the authorities are required to 
prevent violation of the law. This is particularly the case in the 
manufacture of distilled spirits where the tax is so high as to make 
successful evasion extremely profitable. The results of our " luxury 
taxes" are interesting: For the fiscal year 1914 the receipts from 

whiskey and brandy, etc., were $150,000,000 

from malt liquors 67,000,000 

" tobacco 70,000,000 

" playing cards 7 14,000 

" oleomargarine 1,325,000 

The total from beverages was $220,000,000. 

1 Another difficulty is presented in the Interpretation of the tariff law regard- 
ing drawbacks. A drawback is a refund of the duty 00 foreign goods which 

are not consumed in the country but are imported as raw stutTs, manufactured 

and exported again for sale abroad. The idea is to Stimulate our industries by 
giving them the advantage oi" cheap raw materials, 



108 THE NEW AMERICAN GOVERNMENT 

There were 194,000 saloons in the country and 6,452 wholesale 
liquor dealers. The number of both saloons and wholesalers shows 
a marked decrease from year to year, although the amount of 
liquors consumed increases slowly. 

The Commissioner's office is composed of the following divisions 
whose names indicate their functions: Appointments, Law (suits 
over forfeitures, seizures, etc.), Claims, Tobacco, Distilled Spirits, 
Accounts, Stamps, Assessments, Revenue Agents, Chemistry, 
Miscellaneous. 

From this short description it is clear that our Federal revenue 
system is based chiefly upon indirect taxes. Although we have 
thereby escaped some of the dishonesty and corruption which are 
associated with direct levies yet in our high customs duties and 
spirits taxes we have a difficult administrative problem. Smuggling 
and illicit distilling on an extensive scale are of constant recurrence. 
The new income tax is now also collected by the Commissioner of 
Internal Revenue. 

The Audit of the receipts and expenditures of government de- 
partments has existed for centuries in all civilized nations, but has 
been most highly developed by the French, from which nation most 
of our present ideas and terms in public auditing have been bor- 
rowed. The method, briefly stated, is to provide an examination 
of the accounts of all receiving and disbursing officers by an inde- 
pendent authority and thereby place a check upon inaccurate or 
dishonest payments of public moneys. The task involved is a 
huge one as nearly every bureau, office or division in the govern- 
ment service has its disbursing officer, that is, an employe author- 
ized to pay out funds for the office. The administrative machinery 
which has been organized to audit all these accounts, is under the 
direction of the Comptroller of the Treasury, who is appointed by 
the President with the approval of the Senate. This official acts 
as a court of appeal from decisions of the various Auditors, who are 
his subordinates. Of these latter there are six, one each for the 
Treasury, War, Interior, Navy and Post Office Departments and 
one for the State and remaining departments and offices. Each 
of these Auditors, with his deputies, is charged with the examina- 
tion and approval of all accounts of the department to which he is 
assigned. An example showing the character of the work of these 
officials may be seen in the important Bureau of the Auditor of the 
Post Office Department. The Auditor or one of his two deputies 
countersigns all warrants drawn upon the Treasury by postal 
officials, superintends the collection of debts and penalties due the 
Post Office Department, has custody of all contracts made by the 
Department and conducts its suits through agents of the Depart- 
ment of Justice. His Bureau is subdivided into seven divisions 
dealing with the following subjects: Bookkeeping, Collecting, Pay, 
Inspection, Assorting and Checking (for money-orders), Recording 
and Foreign (money-orders and accounts). The Comptroller is 



THE POWERS OF CONGRESS 109 

obliged to see that expenditures are only made for the purposes 
authorized by law and not exceeding the amounts appropriated 
by Congress. He and the Auditors are required to furnish a bond 
for the faithful discharge of their duties. 

The annual running expenses of the executive departments are 
estimated in advance and these estimates are sent to Congress and 
considered by the various committees dealing with the subjects 
affected. The various bureau chiefs are invited to explain the needs 
of their offices before these committees, particularly before the com- 
mittee on appropriations, and the estimates are then modified or 
approved in their original amount. They are then embodied in a 
general appropriation bill and finally passed by the House and 
Senate in the same way as other laws. The watchfulness of the 
Congressional committees is very great and any increase in execu- 
tive expense usually requires full explanation. In case unusual 
expenditures have proven necessary, over and above the amount 
granted by Congress, the money for this purpose is appropriated 
in an "Urgent Deficiency Bill'' which is usually given precedence 
over other measures in the legislative bodies. In this way the Con- 
gressional power is made an important check upoa the expendi- 
tures of the Executive. This custom, which arose in England dur- 
ing the later struggles between crown and people, has been copied 
by all modern governments. 

In England and in European countries, too, the entire revenue 
of the government is provided for in one tax bill, while all the appro- 
priations are grouped in a supply bill and these two are then finally 
adopted as "the budget." President Taft made the first effort to 
introduce some order in the chaos of our national finances; he ap- 
pointed a Committee on Efficiency and Economy, under the direc- 
tion of Dr. F. A. Cleveland, an eminent authority on government 
economy and accounting. This body, which has been continued 
under President Wilson, has made a thorough study of the account- 
ing and business methods of the executive departments and pre- 
pared a series of recommendations which would greatly increase 
the effectiveriess of the administration and save over a hundred 
million dollars yearly in expense. Among its strongest suggestions 
is that of a budget which would bring together all items of expense 
and revenue, of assets and liabilities, and enable the national legis- 
lature to give an intelligent decision on the recommendations of the 
Executive. Astounding as it seems, Congress has to-day no accurate 
knowledge of the work of the departments nor of the basis on which 
to figure their costs. Often the administrative heads themselves 
are unable to judge of the relative efficiency and extravagance or 
economy of the departments' work, as compared with similar work 
done in private establishments. A modern budget system with 
more definite standards o\ efficiency would speedily remedy this 
situation. 

The Secret Service. — This division of the Treasury Department 



IIO THE NEW AMERICAN GOVERNMENT 

is intended to prevent and detect violations of the tax and coinage 
laws such as counterfeiting, smuggling, moon-shining, or the secret 
manufacture of spirituous liquors without payment of the internal 
revenue tax; the evasion of the tobacco tax laws, etc. For these pur- 
poses the country is divided into twenty-five districts with local 
headquarters in each, and numerous agents or "operatives" are 
stationed in European cities to detect smuggling into American 
ports. The Division has also been used to aid other departments 
of the government when this has seemed advantageous, and in doing 
so it has performed some meritorious services. The extensive West- 
ern land frauds which reached the magnitude of a national scandal 
were unearthed in 1905 and 1906 by division agents, and were found 
to involve politicians of national prominence. Among these were 
members of both Senate and House, and in spite of strong influence 
they were convicted through evidence obtained by division opera- 
tives. The two Houses, shortly before this time, had reached what 
we may hope was the lowest ebb of political and moral standing. 
They retaliated by placing a clause in the appropriation bill for the 
Treasury Department, which provided that the Secret Service should 
not be devoted to other purposes than the discovery and punishment 
of frauds in the tax and coinage bureaus. This has been a serious hin- 
drance to the detection of crime and the Secretary of the Treasury 
has repeatedly recommended its repeal. For example, among the 
many duties which the Secret Service operatives, and they alone, can 
well perform, are the protection of the President and the President- 
elect. From the time of the successful candidate's election up to his 
inauguration, he is in no legal sense an official of the United States 
government, yet, following the usual custom, operatives from the di- 
vision are detailed to protect him, regardless of the failure of Congress 
to provide for this wise and necessary precaution. The fear enter- 
tained by many members of the national legislature that a system of 
espionage may be undertaken by the Federal Executive on a larger 
plan, would seem to be groundless. The funds provided by Congress 
for the detection of crime and its punishment are unfortunately 
all too meagre to enable the President to carry out the laws effect- 
ively, while a Russian or German system of spies is utterly impos- 
sible. In a very real sense it is also true that violations of the law 
on an extensive scale multiply as the yearly appropriation for de- 
tection and prosecution becomes inadequate. For these reasons a 
material increase in the funds and staff of the bureau are needed. 

Coinage. — The power to "coin money, regulate the value thereof, 
and of foreign coin," has played a prominent role in our history. 
On two occasions it has been closely connected with serious national 
crises, political and economic. The first arose in the Civil War 
when the government had exhausted its borrowing power; it had 
issued bonds to such a large extent that there were no further pur- 
chasers for them. Both in this country and abroad it became im- 
possible to float such issues. The banks of the Eastern cities had 



THE POWERS OF CONGRESS III 

lent money to meet the Government needs until several financial 
institutions became insolvent. In this way, at the outset of the 
Civil War the nation was confronted by an empty treasury, while 
immense sums of money were required to finance its military opera- 
tions for the preservation of the Union. Unless these funds could 
be secured the dissolution of the nation was inevitable. In des- 
perate straits the government turned to paper money. Such money 
was in substance a promissory note issued by the government. 

Congress in 1862 issued several million dollars of these notes and 
made them legal tender, that is, required them to be accepted when 
offered in payment of any debt. It is safe to say that without such 
an issue of paper money, it would have been impossible to conduct 
the war. 1 But was the issue constitutional? This question arose 
soon afterward and at first the Supreme Court in the case of Hep- 
burn v. Griswold, 8 Wallace, 603, 1869, decided that Congress did 
not have the constitutional authority to issue paper money. The 
expression "coin money" meant to stamp strips or pieces of metal, 
the Court declared, and this could not be held to include paper 
money. But later, in the Legal Tender Cases, 12 Wallace, 457, 
1884, and in Julliardfl. Greenman, no U. S. 421; 1883, the Supreme 
Court, which had meanwhile been increased from seven to nine 
members, ruled that Congress could issue paper money under the 
power to coin money, to borrow money and under the war power. 
The Court in these decisions held that the printing of paper money 
and the compulsory acceptance of this money was one of the most 
common and usual forms of borrowing as practiced by all modern 
governments and the Constitution had expressly conferred the 
power to borrow. Furthermore while the coinage power alone 
might not be sufficient authority to issue the notes, yet the coinage 
clause when taken together with the clearly granted power of 
carrying on a war and the authority to borrow, all combined, un- 
doubtedly gave to Congress the necessary constitutional right to 
issue paper money as a legal tender. By these decisions the enor- 
mous paper currency of the Civil War was legalized; in 1879 the 
Government was able to resume payment of coin in redeeming the 
legal tender notes, and the crisis was safely passed. 

The second occasion on which the use of the coinage power led 
to a serious disturbance of conditions was in 1892, when the value 
of silver sank to one-half of its former level, but the Treasury was 
still obliged by law to purchase silver for coinage at the old ratio. 
The compulsory purchase clause of the law was thereupon repealed 
but the advocates of silver then started an agitation for the coinage 
of unlimited quantities o( that metal at the old rate which was 
nearly double its real worth. The effect oi this proposal if adopted 

1 Some writers, notably Henry C. Adams, consider thai a property t.i\ levied 
by the Federal Government at the outset oi the war and gradually increased in 
extent and volume would have returned abundant revenue to carry on the strug- 
gle, and rendered the issue of greenbacks unnecessary, 



112, THE NEW AMERICAN GOVERNMENT 

would have been to flood the country with a debased currency of 
only one-half its face value. The delay in repealing the silver pur- 
chase clause and the agitation for fr6e, unlimited coinage of silver 
were so disturbing that the business of the entire country became 
unsettled, and a severe panic set in, which did not pass until 1896, 
when by the election of President McKinley, the question was 
settled in favor of the gold standard currency. Silver coinage is 
now limited in amount and must be kept at a parity with gold. 

The Currency. — The national currency is composed of gold, 
silver, Government notes and the notes issued by national banks 
under the authority of the Federal laws. To secure the value of 
these national bank notes an executive official, the Comptroller 
of the Currency, is appointed by the President with the approval 
of the Senate. This official has sweeping powers over all banks 
chartered under the national laws. He is authorized to inspect 
such banks through his agents, to require regular reports as to their 
financial condition, to compel all persons desiring to secure national 
bank charters to conform to the necessary qualifications as to 
number of incorporators, amount of capital, reserve, etc.; he also 
prepares and furnishes to the banks the notes which they are author- 
ized to issue, requires them to deposit with the Treasurer of the 
United States securities covering the value of such notes, as a pro- 
tection for note-holders, and, in case any national bank becomes 
insolvent, it is the Comptroller's duty to take charge of its property 
and assets and to dispose of them in such a way as to protect note- 
holders, depositors and creditors. A redemption agency is also 
established under the Treasurer of the United States, where holders 
of national bank notes may present the same for redemption in 
legal tender. This system has worked fairly well except in times 
of great money stringency or panic, when it has not been sufficiently 
elastic to supply the notes which were needed. 

The banks have always preferred to lend on quick security, that 
is, on collateral such as stocks and bonds, which could be sold at a 
moment's notice to provide funds to cover the loan. Because of 
this preference, persons who wish to engage in stock speculations 
have always found it easier to secure loans than have the manufac- 
turers, storekeepers and other business men who needed bank loans 
for the regular management of their business. In the competition 
for credit between the speculator and business man, the latter has 
usually suffered from this handicap because his note, when handed 
to the bank as collateral for a loan, is not so good nor so quick an 
asset as the share of stock deposited by the speculator. Accord- 
ingly notes, or as they are called, commercial paper, which after 
all is the most legitimate security for a bank loan and the one which 
should be most encouraged, has been at a decided disadvantage, 
while the credit of the country has been drafted off into stock 
gambling in an unhealthy and injurious way. 

Again the lack of co-operation between the banks in times of 



THE POWERS OF CONGRESS 113 

panic has so weakened them in times of serious crisis that there 
has always been danger of a succession of bank failures; in order to 
prevent this, it has been necessary in moments of panic to throw 
the financial resources of the country largely under the control of 
a few trusted leaders, allowing them to lend to the threatened 
banks unlimited amounts in order to restore credit and public 
confidence. This was done in the panic of 1907 when Mr. J. Pier- 
pont Morgan became, for a few weeks, the absolute dictator of the 
whole credit of the business world. In short we have been obliged 
to give to a private individual the power which the government and 
the banks themselves should provide; viz., a central reserve to be 
called on in time of emergency, and devoted to those needs which 
are most urgent to avert a panic. The impression created by the 
panic of 1907 was so profound that at its close a law was enacted 
known as the Aldrich-Vreeland Act of 1908, providing for reserve 
associations to be formed by the banks. This bill was admittedly 
a temporary makeshift, and in December, 19 13, a comprehensive 
act revising the entire system was passed. Under this act the 
United States is divided into twelve reserve districts and in each 
district the National banks form a new Federal reserve bank 
with a capital of at least $4,000,000. The stock of this reserve 
bank is subscribed to by the National and State banks in the dis- 
trict and if the subscriptions are not sufficient, the public and the 
National government may buy the remaining shares. Each reserve 
bank is governed by its own board of directors who are chosen 
partly by the subscribing banks and partly by the central author- 
ity which supervises the entire Federal system, and which is known 
as the Federal Reserve Board. The public funds in the National 
treasury may be deposited with these reserve banks and they are 
also to act as the fiscal agents of the National government. They 
further become reserve depositories for the subscribing banks in 
each district, that is, the local banks must keep a certain propor- 
tion of their deposits on reserve with the reserve bank. The chief 
business of reserve institutions is the re-discounting of commercial 
paper. Any subscribing bank which has made loans to manufac- 
turers, merchants, farmers or other business men upon promissory 
notes ("commercial paper"), if it needs more funds to lend to its 
clients, may take this commercial paper to the reserve bank of its 
district and secure a loan upon depositing the paper as security. 
The local bank thereby relieves itself from the pinch of tight money, 
yet it may not secure funds in this way from the reserve institution 
on stocks or bonds as collateral but only on commercial paper. 
The rate of re-discount charged by the district bank is fixed by the 
Federal Reserve Board. This Board is composed oi the Comptroller 
of the Currency and the Secretary of the Treasury ex-otneio. plus 
five members appointed by the President with the consent of the 
Senate. These latter five members receive a salary for their duties. 
The Board has extensive authority to watch over and regulate 



114 THE NEW AMERICAN GOVERNMENT 

quickly every feature of the new system. It directs the accounts 
and reports of the reserve banks, publishes a weekly statement, 
controls the issue and retirement of special Federal reserve notes 
when these are needed, changes the local reserve requirements 
fixed by law, for both the local and the reserve banks and deter- 
mines the number and location of reserve districts. It may also 
remove officers or directors of the reserve banks for causes con- 
nected with their official duties. It co-operates with the Federal 
advisory council, which is a loose, general committee of inspectors 
or supervisors chosen by the directors of the various reserve banks. 
The council is designed to furnish an outside, impartial view of the 
operation of the banking system and to lead to improvements by 
legislation and executive orders. 

The national bank notes are to be gradually retired and their 
place taken by the notes of the district reserve banks. These notes 
will be issued on the collateral of commercial paper deposited by 
the subscribing banks and other security that may be accepted, in 
the discretion of the Federal Reserve Board. The profits of the re- 
serve banks are divided between the subscribing institutions, 
after a suitable allowance for a surplus fund and Federal tax have 
been made. The reserve banks are allowed to establish branches 
within their districts. In order to extend the banking facilities of 
the farming sections, national banks are now allowed under the law 
to lend on improved and unencumbered farm land up to one-half 
of the value of the property for a period not exceeding five years. 

The advantages of the new Act are many, chief among them 
being: First, the concentration of reserve funds which it provides 
within each region in order to strengthen and help any or all of the 
local banks which may need assistance in time of emergency. 
Originally it was proposed that a single central reserve bank be 
established after the plan which has long existed in England, 
France and Germany; but the small banks and the masses of the 
people feared a Wall Street control of this central institution and 
refused to accept any bill which involved this feature. The re- 
gional or district reserve bank plan was then adopted. Second, 
the new system places a premium upon commercial paper of short 
time, such as ninety days, and thereby removes in part at least the 
preference which the National banks have heretofore shown to 
stocks and bonds as collateral for loans. Third, the National banks 
are now for the first time in their history enabled to lend on farm 
mortgages as security, an important and most desirable addition. 
The farmer has paid higher interest rates and has been steadily 
discriminated against in the past because of his "slow" collateral, 
and even under the new system some traces of this must inevitably 
remain but a moderate share of the resources of the National banks 
may now be devoted to the farmer's needs. Fourth, the new Act 
remedies one serious weakness in our old system which constantly 
brought us into difficulties; viz., the absence of any central con- 



THE POWERS OF CONGRESS II5 

trolling authority which would assure a broad, progressive and 
helpful policy in the management and direction of our reserve 
funds. Since there were neither official reserve funds for panic 
times nor any central authority to control them, it was necessary, 
in time of emergency, as we have seen, to depend on such desperate 
measures as an unofficial private dictatorship. That need no 
longer exist and we now have a healthy, normal means of directing 
and guiding the policy of all the reserve institutions. It is not im- 
probable that this authority may even be strengthened in the future 
as new conditions may arise requiring it. 

The report of the Comptroller of the Currency for 19 14 shows: 
Total number of national banks in operation 7,539 

Capital $1,074,239,175 

Bank notes in circulation 750,000,000 

The specie currency of the United States now in circulation is 
divided as follows: 

Gold coin $633,000,000 

Silver coin and subsidiary silver 237,000,000 

Borrowing Money. — The bonds of the United States are signed 
and issued by the Register of the Treasury who is appointed by the 
President and the Senate. This official keeps a complete record 
of all bonds issued, interest paid, bonds and currency notes re- 
deemed, and all customs, internal revenue and postage stamps con- 
demned for imperfections and destroyed. The more important 
work of determining within the limits set by law, the amount of 
bonds to be issued or redeemed, the denomination or size, the 
general conditions and the exact time of issue is performed by the 
Secretary of the Treasury in consultation with the President and 
Cabinet. The exercise of this important power has a strong in- 
fluence upon the financial conditions of the country at large. In 
time of sudden financial stringency, the Secretary may, by buying 
back a quantity of bonds, place at the disposal of the banks a large 
amount of funds, which enter into circulation and thereby reduce 
the tension. Or under other circumstances he may find the public 
willing to buy government bonds but not to lend money — in such 
a case the Secretary may sell a quantity of bonds and deposit the 
money, received for them, in the national banks of certain sections 
of the country where it is most needed. This was done by Secre- 
tary McAdoo in 19 13 with satisfactory results. 

REFERENCES 

Annual Report Secretary of the Treasury. 

F. N. Judson: The Power of Taxation. 

Reports and Bulletins of the President's Commission on Economy and Fyi ' 

DEWEY: Financial History of the United States. 

BARNES AND MlLNER: Selected Cases in Constitutional Law, Hon, 

Ford: The Cost of Government. 

Conway and Patterson: The Federal Reserve Act. 

Seligman: Essays on Taxation, TQ13 Edition, 

Adams: Science of Finance, ad Edition, 



H6 THE NEW AMERICAN GOVERNMENT 

QUESTIONS 

i. Why have the powers of Congress given rise to so much conflict of opin- 
ion among statesmen and in the courts? ' 

2. Why were the Federal powers enlarged in 1787? Which powers were 
added at that time? 

3. Why was the taxing power considered important? 

4. What power of taxation had Congress under the Articles of Confedera- 
tion and how was this changed in the new constitution? 

5. What is the rule given in the constitution governing the levy of duties, 
imposts and excises (indirect taxes)? 

6. Could Congress constitutionally tax the salary of a State official? See 
Collector v. Day and the 16th Amendment. 

7. Congress levies a tax upon the circulating notes issued by State banks. 
Is it constitutional? Give reasons and a precedent. 

8. Congress levies a tax on corporations and the Tax Collector includes the 
amount which a certain corporation owes to the City. Is this inclusion legal? 
Reasons and a precedent. 

9. If Congress levied a tax on all personal property could it include such 
property as State or municipal bonds? Why? Give a precedent. 

10. The State Government of X decides to take over the tobacco business 
within its borders and conduct it by State officials. Must it pay the Federal 
internal revenue tax on tobacco? Explain the arguments of the State and the 
decision of the Court, with reasons. 

11. Explain the constitutional rule governing the levy of direct taxes. 

12. In order to protect our natural resources Congress levies a duty of $1.00 
per ton on all coal exported from the United States. Would such a tax be con- 
stitutional? Reasons. 

13. Do direct taxes have to be uniform throughout the United States? 
Reasons. 

14. Could Congress levy a tax of 50% on the value of silks imported into 
the United States and a tax of 51% on imported tobacco? 

15. Could Congress levy a tax of 50% on the value of woolen cloth imported 
into Philadelphia and 30% on the same cloth imported into New York City? 
Reasons. 

16. Congress enacts a law providing that vessels passing from Chicago to 
Duluth shall pay a tax of one-quarter of 1% of the value of their cargo at the 
latter point, and shall make out clearance and entry papers for the voyage 
the same as if they were bound for a foreign port. Is this constitutional? 
Reasons. 

17. In 1894 Congress levies a tax of 1% on all incomes over $4,000. Is it 
constitutional? Reasons. 

18. In 1913 Congress levies a tax of 1% on incomes over $3,000. Is it con- 
stitutional? Reasons. 

19. The Federal Government does not at present tax land. Could it con- 
stitutionally do so? How must a land tax be levied and why? 

20. In order to discourage the attempts of the States to regulate business, 
Congress establishes a tax of 5% on the salaries of all officials employed in regu- 
lative work by the States. Is it constitutional? Reasons. 

21. If the income tax of 1894, was unconstitutional, why was not the cor- 
poration tax of 1909 also so declared? 

22. In 1900, a grocer imports coffee from the Philippines and is obliged to 
pay a small duty at the port of entry in the United States. He protests on the 
ground that the Constitution declares that duties shall be uniform throughout 
the United States. Decide the case with reasons. 

23. Give and explain the most important sections of the Constitution limit- 
ing the State power to tax. 

24. Illinois levies a tax of $1.00 per ton on steamboats and other craft which 
ply the waters of the State. Is the tax constitutional? Reasons. 

25. Illinois levies a tax on all movable property owned or located in the 



THE POWERS OF CONGRESS 11^ 

State, including vessels owned by residents, and located within its boundaries. 
The tax is i% of the value. Is it constitutional? Reasons. 

26. Illinois taxes the notes of the new Federal reserve bank located in Chi- 
cago. Is the tax constitutional? Reasons. Cite an authority. 

27. Could Massachusetts protect the health of its people by establishing a 
State quarantine or health inspection service and charging a small inspection 
fee on all goods imported into the State, in order to cover the cost of the medical 
officers in examining the imported goods? Explain the reasons and cite the 
clause of the Constitution in question. 

28. If Congress gave its consent could a State levy a general tax on imported 
articles? 

29. Explain fully the meaning of the general welfare clause of Article I, 
Section 8. 

30. You are present at a discussion in which the power of Congress to regu- 
late the public school system is argued. Someone claims that Congress has 
the power to do so under the general welfare clause. What would be your 
views? 

31. At the urgent insistence of temperance societies Congress doubles the 
present internal revenue taxes on intoxicating liquors. A distillery owner objects 
to the payment of the tax on the ground that it will destroy his business, which 
Congress cannot do under the 5th Amendment, and that Congress has no power 
to regulate manufacturing. He complains that the tax is an attempt to dis- 
courage and thereby regulate the distilling business. What would the court 
decide? Reasons. 

32. Would a law which levied a tax of 2c per pound on imitation butter and 
made it unprofitable to produce such imitation butter, be constitutional? 

33. In 1920 Congress levies a heavy tax on automobiles. You own an auto- 
mobile on which you have already paid taxes to the State. Could you claim 
that the Federal law was unconstitutional because of double taxation? 

34. How have the State and national governments heretofore kept their sub- 
jects of taxation, or sources of revenue separate? 

35. What subjects are they now both taxing? 

36. Explain briefly the newer drift of public opinion in taxation and its 
effects upon proposed tax laws? 

37. Is taxation without representation unconstitutional? 

38. In a discussion of the Federal income tax of 1913 it is claimed that the 
law is unconstitutional because it exempts incomes under $3,000 and thereby 
violates Article I, Section 8, which requires that certain taxes shall be uniform 
throughout the United States. Give your views as to the strength of this claim, 
with reasons. 

39. Give a brief summary of the chief sources of national revenue. 

40. What is the difference in the cost of collection of customs and internal 
revenue respectively? 

41. Give a brief summary of the chief expenditures of the government, 

42. Outline the outstanding indebtedness of the United States. 

43. Explain how customs duties are collected and the administrative or- 
ganization for this purpose. 

44. Outline the organization for the collection of internal revenue, and show 
the chief items of such revenue. 

45. Summarize briefly the method of auditing accounts in the national 
government. 

46. Does Congress or do the people know accurately the efficiency, economy 
or extravagance of the executive departments? Why? 

47. What is the purpose of the national budget? 

48. Explain the work of the secret service division. 

49. Why has its authority been limited by Congress? 

50. What is the constitutional power of Congress over currency? 

51. In order to pay the expenses of the Civil War Congress issued a large 
amount of paper money and declared such paper to be legal tender in payment 
of debts between individuals. Was such action constitutionals Reasons. 



Il8 THE NEW AMERICAN GOVERNMENT 

52. It also declared this money to be legal tender for debts contracted before 
the passage of the law. Was this constitutional? 

53. Why has it usually been more difficult for the farmer and the business 
man to secure credit, in times of panic, than for the stock speculator? 

54. How has the separation of the resources of different banks and the fail- 
ure to co-operate increased the dangers of banking and the seriousness of panics 
in the past? 

55. Explain how the new Federal banking act aims to remedy the weaknesses 
pointed out in the last two questions. 

56. How does the United States borrow money? How may the Secretary of 
the Treasury aid the farmers in marketing their crops in times of tight money? 



CHAPTER VI 

THE POWERS OF CONGRESS— Continued 
THE REGULATION OF COMMERCE 

Chief Purposes of Regulation. — The Government to-day is a 
silent partner in every large business. Public regulation has grown 
steadily in all fields, and in spite of the outcry raised against pater- 
nalism and radicalism, a close examination of our regulative laws 
shows that most of them are really designed to protect and preserve 
the business welfare of the community. They are aimed to safe- 
guard the interests of (a) the consumer and (b) the investor, and 
they represent two great changes in the public opinion of our time, 
(a) The consumer was formerly thought to be amply protected by 
the ordinary action of the laws of supply and demand. If the pro- 
ducer sold fraudulent articles or charged extortionate prices, or was 
guilty of other acts injurious to the interests of the consuming pub- 
lic this would soon be discovered and he would be displaced by com- 
petitors who would be more honest, more moderate in prices, or 
more thoughtful of the public interest. Such was the accepted 
belief of the leading thinkers of former days. Our laws were based 
on this doctrine, but the experience of the newer generations has 
shown us that the doctrine no longer holds true under modern con- 
ditions. The buyer to-day does not know personally either the man- 
ufacturer, the wholesaler or the retailer whose goods he purchases. 
Trade has ceased to be local and become national arid even inter- 
national in scope. An article may be what it seems, but it may also 
not be. Producers of some standard necessary of life may combine 
together to extort unreasonable prices from the public. Fraud may 
be practiced in manifold ways, so that the consumer is unable to 
protect himself. He has become thoroughly aware of this fact and 
demands protection. These changes in the conditions and in the 
beliefs of the people have produced a strong tendency towards Gov- 
ernment regulation for the protection of the consumer, (b) The in- 
vestor has likewise undergone a profound change in his beliefs and 
in his attitude towards the Government. We used to consider it 
the buyer's business to protect himself in any deal. The old Eng- 
lish legal principle caveat emptor — " let the buyer beware " — meant 
that every purchaser was thrown on bis own resources in the open 
market; if he were deceived it was from lack o\ due care and caution. 
Practical as this rule may have been some generations ago, we can 
no longer rely wholly upon it in the purchase of stocks, bonds, and 
securities to-day. The investor now demands that there shall be at 



120 THE NEW AMERICAN GOVERNMENT 

least some minimum standard of safety and honesty in the issue 
of securities, and that this standard shall be fixed by the Govern- 
ment as far as possible and enforced by it. 

Closely related to this protection of the investor is the effort of the 
Government to safeguard the small producer. This is especially seen 
in such measures as the anti-trust laws. For over a century the com- 
mon law of England and America has forbidden the formation of 
monopolies and attempted to uphold complete freedom of competi- 
tion. Its purpose in doing so has been chiefly to secure the benefits 
of competition to the consumer, but more recently we have also 
been strongly influenced in our legislation by the demands of small 
producers themselves for protection against destructive practices, 
business piracy, and illicit or dishonest customs which are often re- 
sorted to in the war of competition. Such customs and practices 
injure the consumer indirectly, but they directly and immediately 
destroy the producer himself, and are felt first by him. No small 
part of the influences which have led to our anti-trust laws is due 
to organizations of producers who have banded themselves together 
for protection, and now demand Government regulation to this 
end. 

The Federal Power. — The authority to regulate commerce is the 
most frequently used of all the powers of Congress. Most of the 
questions of national politics in which we are deeply interested are 
based on the commerce power; these include the control of the trust, 
the railways, express companies, telephones and telegraphs, corpo- 
rations, pure food, etc. In the moment that any corporation engages 
in trade between the States it becomes subject to the legislation of 
Congress. This explains why the attention of the people has be- 
come so closely fixed upon the regulative power as to make it the 
very center of government activity to-day. The business men of 
1785 found that State regulations and State taxes were hampering 
the free flow of trade between the States. They met in a convention 
at Annapolis and called for a new system of government which would 
give to the national authorities the sole right to regulate business 
between the States. This movement was not successful until, in 
1787, the new Constitution declared in Section 8 of Article I, that 
Congress shall have power "to regulate commerce with foreign 
nations and among the several States and with the Indian tribes." 

The government's control over business as contained in this 
clause of the Constitution has raised several practical questions: 

What is "Commerce"? 

Does it include manufacturing? 

What is the present system of regulating commerce? 

What have been the results of regulation? 

What is the relation of the Federal control to State regulation of 
commerce? 

Meaning of " Commerce." — What is Commerce? Chief Justice 
Marshall, than whom no greater authority can be cited, has said in 



THE POWERS OF CONGRESS 121 

Gibbons v. Ogden, 9 Wheaton, 189 ; 1824, " Commerce is inter- 
course." The gradual expansion of the term is traced by Thomas 
H. Calvert in his Regulation of Commerce in which he quotes 
Justice Harlan of the Supreme Court as follows: " Commerce among 
the States embraces navigation, intercourse, communication, traf- 
fic, the transit of persons, and the transmission of messages by 
telegraph." It is fortunate that our highest court in defining 
" commerce" has taken such a broad and statesmanlike view. Had 
it adopted a narrow interpretation, the power of Congress might 
have been so severely limited as to deprive the national government 
of its authority. Since 1787, the economic progress of the country, 
the growth of mechanical inventions and the increase of population 
have all combined to make "commerce" one of the greatest busi- 
nesses of the nation and with every step in this growth the Federal 
authority has kept pace. Every new invention and discovery which 
promotes intercourse, increases the power of the national govern- 
ment to that extent. Chief Justice Waite in 1877 said (Pensacola 
Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1): 

"The powers thus granted over commerce and postal mails are 
not confined to the instrumentalities of commerce, or the postal 
system known or in use when the Constitution was adopted, but 
they keep pace with the progress of the country, and adapt 
themselves to the new developments of time and circumstances. 
They extend from the horse with its rider to the stage-coach, from 
the sailing vessel to the steam-boat, from the coach and the steam- 
boat to the railroad and from the railroad to the telegraph, as these 
new agencies are successively brought into use to meet the demands 
of increasing population and wealth. They were intended for the 
government of the business to which they relate, at all times and 
under all circumstances." 

Does " Commerce " include Manufacturing? — The importance 
of this question for the business man may be seen at once from the 
fact that practically every business except farming, mining and the 
professions, would be subject to the direct control of the National 
government if commerce were so broadly defined as to include in- 
dustry. This interesting problem came before the Supreme Court 
in the case of United States v. E. C. Knight, 156 U. S. 1 ; 1895, Con- 
gress having passed an act prohibiting monopolistic combinations 
in interstate commerce the question arose, is a manufacturing com- 
bination subject to this law? The attorneys for the Knight Co. de- 
clared that manufacturing was the change of form while commerce 
was the change of place, and that Congress had control over com- 
merce but not over manufactures, according to the plain meaning 
of the constitutional clause. This view was upheld by the Supreme 
Court. Industry is not commerce. But practically, this distinction 
is becoming daily of less importance since every largo manufacturing 
enterprise is now obliged to engage actively in trade between the 
States. It must transport its raw materials and sell and ship its 



122 THE NEW AMERICAN GOVERNMENT 

finished product. The assembling and distribution of these mate- 
rials and products has now become so closely connected with their 
manufacture as to be inseparable m practice; which amounts to 
saying that our large industrial companies have become subject to 
the commerce regulating power of Congress. Over this great cur- 
rent of interstate trade the authority of Congress is absolute and 
plenary, subject only to the restraining clauses of the Constitution. 1 
It may pass laws to remove obstacles from trade, to protect com- 
merce from dangers and evils which are threatened, to regulate the 
kinds of commerce which shall flow from State to State and the 
channels by which it shall flow, and even to prohibit commerce tem- 
porarily, for a proper legitimate purpose. 

The National System of Regulation. — How has Congress used 
its power to regulate commerce? Originally the power was exerted 
chiefly for the protection and encouragement of shipping and navi- 
gation. Lighthouses, harbors, coast surveys, fisheries, etc., were 
controlled in great detail to the exclusion of other matters. But in 
the last twenty-five years an important change in our national pol- 
icy has taken place. Popular attention has been directed towards 
the trusts, a strong demand has arisen for some control over these 
large corporations, and Congress in response has exercised its au- 
thority along entirely new lines. Three different kinds of corpo- 
rate regulations have been attempted, corresponding to three inter- 
esting stages of popular sentiment on " trusts" and combinations of 
capital. First, the thought was that, since the trust thrived on 
secret rebates and discriminations granted by the railways, if these 
could be prevented the trust would be destroyed. This feeling 
caused the passage of the commerce law of 1887, prohibiting rebates. 
In the second stage, the people felt that the act of combination it- 
self was an evil and should be prohibited by law; hence the Sherman 
Anti-Trust Act of 1890. In the third stage, the combination was 
acknowledged to be a sound economic form of business but the chief 
evil seemed to be over-capitalization or stock-inflation. This should 
be checked by publicity, hence the laws of 1903 and 1909. Let?us 
examine briefly the various evils which were aimed at by this legis- 
lation and the practical results achieved. Foremost among these 
lies the question of railway discrimination in favor of the larger 
shipper as against the smaller. 1 

Railway Discriminations and Rebates. — One of the chief pur- 
poses of the national laws regulating commerce has been to suppress 
railway discrimination and the rebate. The original form of this 
practice was a lower rate quoted to the large shipper, but as this 
inequality soon became known and aroused antagonism the discrim- 

1 The most important of these clauses are the prohibition of taxes on articles 
exported from any State and of preferences to the ports of any State, also the 
declaration that vessels in the coasting trade shall not be obliged to enter clear 
or pay duties while passing from one State to another; all are contained in 
Article I of the Constitution. The purpose of these restrictions has already been 
explained under Taxation. 



THE POWERS OF CONGRESS 1 23 

ination was then changed in form. The large shipper was quoted 
the same rate as his small competitor, but he received a secret dis- 
count or rebate of part of this charge. The practice of rebating be- 
came so general in certain industries that all shippers asked and se- 
cured these secret variations from the published railway rates, the 
amount varying according to the size of the shipper's tonnage. 
Many of the railways had oral or written agreements providing for 
a return of part of the freight charge in this way, and some of these 
agreements have been produced in judicial proceedings and are 
matters of record. 

After the reb&ting practice had become thoroughly established, 
the large shipper decided to extend his advantage one step further 
by demanding a rebate not only on his ov/n shipments but also on 
those of his competitors. He was not always able to secure this 
but if he controlled a sufficient amount of freight to make it worth 
while for the railway to accept his terms he was successful. Court 
records show for example that one railway allowed its largest freight 
shipper a rate of 10c per barrel of oil, whereas his competitors were 
paying 35c per barrel, and that the railway furthermore paid to the 
large shipper the sum of 25c per barrel, on his competitor's freight, 
which was the difference between his rate and that charged the 
small shipper. The large company thereby enjoyed an advantage 
of 50c per barrel over its competitors in the cost of marketing its 
product. This entire practice is now forbidden by the Act of 1887, 
and the amendment of 1903, providing that "it shall be unlawful 
for any person, persons, or corporation to offer, grant, or to solicit, 
accept or receive any rebate, concession, or discrimination in 
respect to the transportation of any property in interstate or foreign 
commerce by any common carrier subject to said act." "Every 
person or corporation whether carrier or shipper who shall, know- 
ingly, offer, grant, or give, or solicit, accept, or receive any such 
rebate, concession, or discrimination shall be deemed guilty of a 
misdemeanor." So long as the Act punished only the railways, it 
was difficult if not impossible to enforce it, since the initiative in 
rebating did not usually come from the carrier but from the shipper, 
who demanded a drawback. But the amendment of 1903 just 
cited, which visited a punishment upon the shipper who demands, 
as well as the carrier which offers or grants the rebate, speedily put 
an end to the grosser forms of drawback and the practice has 
steadily diminished. In iqo(), four of the principal railways oi the 
country and three large industrial combines were lined for rebating, 
some of the traffic managers being penalized as much as $10,000 
each and one railway company being fined $118,000. That the 
illicit custom has not died out yet IS due to the fact that some hope 
has remained until recently of devising new indirect methods oi 
rebating which might stand as legal. 

Private Cars. -The special freight car owned and used by ship- 
pers or by large private concerns like the refrigerating companies, 



124 THE NEW AMERICAN GOVERNMENT 

plays an important role in interstate trade. 1 It has been of great 
value in offering special equipment and service for peculiar kinds of 
traffic such as vegetables, fruits, meats, and perishable products. 
Discriminations have crept in by the practice of allowing the owner 
of the car, if he is a large shipper, to send it over the line at such a 
low rate as to give him practically a concealed rebate; also by 
allowing the large companies which own refrigerator cars to make 
their own charges to snippers. These charges include a payment 
for icing the car, etc., and these have varied so heavily between 
different customers as to favor some and disable others in their 
efforts to compete. The Commerce Act now gives to the Commis- 
sion the power to supervise and regulate these charges and services. 

Private Railways. — The shipper may establish his own private 
road leading from the main railroad into his plant, and he may then 
deduct from the total freight rate a charge for carrying the goods 
over his own line. This charge for his own services on his private 
railroad in the plant may be raised to such a point as to amount 
practically to a rebate. An extensive system of discriminations or 
favors to large plants has grown up, amounting to millions of 
dollars yearly. 

Demurrage Charges. — Demurrage is a charge by the railroad 
for the failure of the shipper to load or unload cars promptly on 
arrival at their destination. The charge represents the cost of 
keeping the cars idle while occupied by the shipper's goods. It 
may be calculated in such a way as to discriminate against the 
small shipper in favor of his larger competitor. 

Car Supply. — In certain industries, such as coal mining, the prob- 
lem of securing enough cars to ship the product to market has be- 
come as important as the older question of freight rebates. If the 
railway is desirous of favoring a heavy shipper, it may grant him 
a larger supply of cars for his mine, while cutting down his smaller 
competitor to such a number that the latter is unable to fill his 
orders and is placed at a serious disadvantage in the market. In 
one case the testimony taken in Court showed that of two mines 
located side by side on the railway and both having about the same 
output, the mine owned by a favored operator was given a prefer- 
ence of 175 per cent over his competitor in the supply of cars. 

Restrictions of Side-Track Facilities. — A railway company can 
deny or limit the side-track facilities of a shipper in such a way as 
to cut down his output and prevent him from shipping the full 
capacity of his mine. That this is poor policy is evident, and the 
only reason for such practices as those described is the desire of 
some railway official to favor a company in which he or his friends 
are interested. In one authenticated case a mine operator was 
promised a switch or side-track into his mine on condition that he 
send a check to cover the expense of construction. Later the check 

1 See Weld: " Private Freight Cars;" in Columbia University Studies in His- 
tory, Economics and Public Law, 1908. 



THE POWERS OF CONGRESS 1 25 

was returned and he was notified that the company had decided 
not to build the siding. Another mine owner on complaining to a 
friendly railway official of the company's refusal to put in a siding 
for his coal, was advised to sell his mine. Such discrimination is 
usually prohibited by the State laws which require the common 
carrier to transport goods presented for shipment and which also 
require the company to furnish reasonable track connections for 
mines and other industrial enterprises. The Federal law requires 
the same of interstate railways. (Sec. 1, Interstate Commerce Act.) 
Undoubtedly the stockholders of the railways would repudiate such 
practices but as the discriminations described above are not known 
to the stockholders, the shipper has been obliged to secure his pro- 
tection from the law. 

Discriminations at the Railway Terminal. — After the shipper has 
secured equal freight rates with his erstwhile favored competitor, 
he may find that the latter is obtaining some special privilege or 
lower charge at the terminus of the railway for the services rendered 
there. These services cover in modern trade such a large field as 
to be of vital interest to every manufacturer or shipper. The 
storage of freight in elevators or warehouses, the ferrying of freight 
across rivers or a harbor, the private exclusive use of special parts 
of the railway company's equipment such as piers, wharves, docks, 
etc. — all these must be watched by the shipper to see that his terms 
are equally favorable with those given his competitors. In order 
to prevent these forms of discrimination, the Commerce Act has 
conferred on the Commission the supervision and control over all 
terminal services directly or indirectly connected with transporta- 
tion, and the Commission now regulates not only the charges, but 
also the kind of service rendered. In order to insure fair treatment 
of all shippers, the law also contains this sweeping clause: 

"That it shall be unlawful for any common carrier subject to 
the provisions of this Act to make or give any undue or unreasonable 
preference or advantage to any particular person, company, firm, 
corporation, or locality, or any particular description of traffic, in 
any respect whatsoever, or to subject any particular person, com- 
pany, firm, corporation or locality, or any particular description of 
traffic, to any undue or unreasonable prejudice or disadvantage in any 
respect whatsoever." 

The injured shipper may also recover in a suit for damages. 
Rebates, as we have seen, are especially forbidden, both the giver 
and receiver being subject to a fine of from one to twenty thousand 
dollars and imprisonment for two years. 

Discriminations Against Cities and Districts. — Another form 
of discrimination which has caused much trouble and against which 
the law of 1887 is directed, is the difference in railway rates to dif- 
ferent cities and sections of the country. It is to the interest oi the 
railway to build up a long haul; points at the end o\ its line are 
sometimes favored at the expense oi nearer cities. The reason U 



126 THE NEW AMERICAN GOVERNMENT 

that the railway can handle traffic more cheaply and develop a more 
profitable business on long distance freight. This often leads to a 
higher charge for a short haul to the nearby town than for a longer 
one to the city at the terminus of the road, and therefore works in- 
justice to the nearer points. The necessity for a reduction of rates 
as a rule arises from discrimination against particular places, but 
not from the general level of rates charged, which is lower in this 
country than in other parts of the world. 

The real problem of government rate control to-day is the com- 
petition between different sections of the country for the same 
market. The manufacturers and merchants of the Atlantic sea- 
board are competing with those of the Mississippi Valley to win 
the trade of the Rocky Mountain States and the Pacific Coast. 
The slightest change in through railway rates westward is bound 
to affect this competition and help one section at the expense of 
another. The railways understand this and their efforts are bent 
towards a scale of rates which will encourage the most traffic at a 
high profit and at the same time answer the needs of the communi- 
ties through which they pass. But frequently circumstances be- 
yond their control, such as water transportation, competing rail- 
ways at terminal points, or the rise of new industries requiring 
special rates for their encouragement, intervene to compel an en- 
tirely different basis of rate-making from what would otherwise be 
possible. 

Amidst all this maze of bewildering and conflicting interests 
there must be some impartial tribunal which shall survey the whole 
field of rates and regard each local question in its connection with 
the entire problem of industrial competition. This is the work of 
the Interstate Commerce Commission. We may appreciate the 
magnitude of its sphere and its transcendent importance to the 
business of the country when we realize that every accurate study 
of rates, and every just decision as to their reasonableness, must be 
based on a knowledge of the physical and financial condition of the 
railway and its competing lines, and the business conditions at the 
origin and destination of the traffic, together with those of other 
competitive districts which may be affected. Gradually the Com- 
mission is being forced to become the economic supreme court of 
the American transport world and to establish a system of rates 
which shall give to the manufacturers and merchants in each 
section a special facility in reaching their markets. The Commis- 
sion consists of seven members appointed for seven years. This 
body has power to receive complaints of shippers, investigate rates 
and ascertain if undue preferences or discriminations exist. It 
may also order the necessary changes to remedy discriminations 
and excessive rates. It holds hearings of all parties concerned, and 
provides a quick, simple and cheap form of procedure so that both 
railway and shipper may secure an equitable adjustment of their 
differences. Having heard both sides and made such independent 



THE POWERS OF CONGRESS 1 27 

investigations of its own as it may wish, the Commission issues a 
rule or order deciding the case. From this an appeal was taken 
to a United States District Court, and thence to the Supreme Court. 
In 1910 a special Commerce Court was organized to hear such 
appeals, with the thought that its judges would soon become 
specialists in railway cases in a way that the district judges could 
not, and that decisions would thereby be greatly hastened and 
improved in quality. The Commerce Court judges speedily famil- 
iarized themselves with their duties and a marked improvement in 
the speed of decisions was noticeable. But many of the important 
early decisions were unfavorable to the Commission and the impres- 
sion gained ground that the Court was attempting to act as a 
damper upon the Commission's efforts to secure fair treatment for 
the shipper. This led to a general movement to abolish the Court 
which succeeded in 1913, and appeals from the Commission now 
go to the U. S. District Courts. It is most unfortunate that 
the special court idea has been abandoned. Its two strong features 
already noted, viz., special knowledge of railway law and quick 
procedure, had begun to commend it to both shipper and carrier 
and it may be hoped that the idea will be revived in a more favor- 
able form in the near future. The powers of the Commission cover 
not only railways but also private car lines, sleeping cars, parlor 
cars, express companies, pipe lines, 1 telegraph, telephone and cable 

1 Pipe Lines. — Although the Commerce Act expressly includes pipe lines 
under the jurisdiction of the Commission, subjecting their services and rates to 
national control, the extent of this clause of the Act was not clearly appreciated 
until the decision in U. S. v. Ohio Oil Co. el al., 234 U. S. 548; 1914. The pipe 
lines which were regulated by the Commerce Commission in this case, and which 
appealed from its rulings, controlled most of the oil from the fields east of Cali- 
fornia to the Atlantic seaboard and piped it eastward to the coast on condition 
that the oil should be sold to the company. The Standard Company owning 
the Ohio Co., and its co-defendants, by refusing to carry any oil except under 
these terms made itself master of the oil fields without the necessity of owning 
them and carried across half the continent a great volume of commerce, coming 
from many owners but controlled by the Standard Oil Co., through its pipe 
lines. The Commerce Act, as amended in 1906, applied to pipe lines which 
were common carriers. The oil companies contended that the oil was their 
own property and they, not being common carriers, were not subject to the 
rate regulations governing transit by pipe lines, as fixed by the Commission. 
The Supreme Court, however, decided that the act clearly applied to all pipe 
lines engaged in the transportation of oil from fields not owned by them. " It 
not only would be a sacrifice of fact to form, but would empty the act if tiie 
carriage to the seaboard of nearly all the oil east of California were held not to 
be transportation within its meaning, because by the exercise oi their power the 
carriers imposed as a condition to the carriage a sale to themselves. As ap- 
plied to them, while the amendment does not compel them to continue in opera- 
tion, it does require them not to continue except as common carriers. That is 
the plain meaning, as has been held with regard to other Statutes similarly 
framed." A sharp distinction was drawn by the Court between the companies 
which transported oil from the fields of other owners, even though sold to the 

pipe line as a condition of transportation, on the one hand, and those pipe 
lines which transported oil from a field owned by the company, to a reli:\ 
another State owned by the same company. This was true of the I 



128 THE NEW AMERICAN GOVERNMENT 

companies, shipments of goods partly by rail and partly by water, 
storage charges, etc. The Commission also prescribes a uniform 
system of accounts for carriers, and requires reports from them on 
earnings. It enforces the law governing air brakes and other 
safety appliances on interstate trains. , 

Under the act of August 9, 191 7, and earlier laws, no new changes 
in rates may be made without the approval of the Commission ; the 
latter may also on its own judgment investigate any rate, and order 
a reduction even where there has been no complaint. When the 
common carrier applies for approval of an increase in rates the 
burden of proof is upon the carrier to show that such increase is 
reasonable and just. Railways are not allowed to charge more for a 
shorter than for a longer haul over the same line, except with the 
consent of the Commission. 1 The purpose of all these provisions is 

Oil Company. "This company has a refinery in Kansas and oil wells in Okla- 
homa, with a pipe line connecting the two which it has used for the sole purpose 
of conducting oil from its own wells to its own refinery. It would be a perversion 
of language, considering the sense in which it is used in the statute, to say that 
a man was engaged in the transportation of water whenever he pumped a pail 
of water from his well to his house. So as to oil. When, as in this case, a com- 
pany is simply drawing oil from its own wells across a state line to its own re- 
finery, for its own use, and that is all, we do not regard it as falling within the 
description of the act, the transportation being merely an incident to use at 
the end." 

1 This is the celebrated long and short haul clause. Its purpose is to prevent 
discriminations against particular districts in the making of railway rates. Such 
discrimination is necessary, railway men contend, in many parts of the country. 
The transcontinental lines running westward to the Pacific Coast have found 
that their through freight charges to the coast cannot exceed greatly the cost 
of water transportation to the Pacific cities, especially on slow freight, otherwise 
this traffic will be diverted to the water. Consequently the whole transconti- 
nental rate system has been built upon a low through rate to the coast. But 
this reduces the profits of the carriers so greatly that they must recoup by charg- 
ing a higher rate on freight destined to intermediate points such as Spokane, 
Denver, Reno, Ogden and the other cities located in the mountain and inter- 
mountain region. This explains why for many years the charge on freight to 
cities in the mountains was higher than if the goods were shipped a longer dis- 
tance through the mountains to the coast. For over twenty years the com- 
mercial bodies in this mountain region have been trying to secure an amendment 
of the commerce law which would compel the carriers to give them the same 
low rates as were enjoyed by coast cities. This effort succeeded in the new form 
of the long and short haul clause which was adopted by Congress June 18, 
19 10. It forbids the railways to charge more for a short haul than for a long 
one over the same line in the same direction, except with the consent of the 
Commission. All the transcontinental companies applied for this consent. 
The Commission in its order covering the case granted their request only in 
part. It divided the country into zones or regions corresponding with the 
separate groups of Railways, and decided that freight charges from the eastern 
zones might be slightly higher to intermediate points than to the Pacific coast 
cities, but that freight charges from the western zone to intermediate points 
must not be higher than the through rate to the Pacific cities. The western- 
most zone, which was numbered one, corresponded roughly to a line drawn 
south from Minnesota to the Gulf of Mexico, and included all the country west 
of this line. In this zone the freight rate on goods westbound to intermediate 
points must not exceed the through rate to the Pacific cities, that is on the 
shortest hauls in this district the through rate, and not more than the through 



THE POWERS OF CONGRESS 1 29 

to stop discriminations and insure greater equity of treatment for 
all who use the railways. 

Results of the Law. — The results obtained by these laws have 
amply justified their passage; rebates have not ceased but they are 

rate might be charged. The Railways might charge less if they chose. Four 
other zones were mapped out east and south of zone No. 1, according to their 
distance from the Pacific coast. In zone No. 2 the railways might charge 7% 
more on freight rates to intermediate points than to the Pacific coast terminals. 
In zone No. 3 15% more; in zone No. 4, 25% more, so that roughly speaking the 
greater the distance from the Pacific coast terminals the higher might be the 
charge on freight going to the intermediate points. The railways, dissatisfied 
with this ruling, appealed to J \e courts, and the final decision by the Supreme 
Court in this dispute is one of the most important which it has rendered on rail- 
way questions within recent years. (U. S. v. Atchison, Topeka & Santa Fe, 
et al.j June 22d, 1914.) The main point on which the railways contested 
the case in the courts was that the Commission was exercising a legislative 
power which under the Constitution could be wielded only by Congress. It 
was claimed that when the Constitution declared in Article 1, Section 1, that 
rJl legislative powers herein granted shaV be vested in a Congress it clearly im- 
plied that :io legislative power could be vested in any other authority. But if 
the Commission were to say, as the Short Haul Clause of 19 10 permitted it 
to say, when a railroad should be subject to the clause and when it should not, 
this was clearly a use of legislative power by the Commission, and was therefore 
unconstitutional. Not even Congress itself could delegate its own power to 
another body, and it, like all the other authorities of Government, must obey 
the Constitution. Any authority or legislative power of Congress could not be 
delegated to a Commission. In addition the carriers also claimed that even 
if the Commission could receive such power as had been given to it in the Long 
and Short Haul Clause, it had no authority to divide the country up into arbi- 
trary zones and regions and to determine the conditions of freight charges under 
which these regions should trade with each other, nor to fix any proportion of 
percentage, such as 7%, 15% and 25% between different sets of rates and to 
fasten these percentages upon the freight charges of the country. Both of these 
claims were rejected by the Supreme Court. It held that there was no uncon- 
stitutional delegation of power by Congress to the Commission, since Congress 
had only fixed a general principle, viz., the reasonableness and fairness of rates 
and the general rule forbidding discrimination. Congress had then turned over 
these principles and rules to the Commission with authority to execute them in 
particular cases. The Court pointed out that previous to the passage of the 
Act the power to fix rates and proportions between rates belonged to the railways, 
and that such a power was in its essence public and governmental. Congress 
had taken this power from the railways and vested it in the Commission. "I low- 
can it otherwise be since the argument as applied to the case before us is this: 
that the authority in question was validly delegated so long as it was Lodged in 
carriers, but ceased to be susceptible of delegation the instant it was taken 
from the carriers for the purpose of being lodged in a public administrative 
body?" It followed that if Congress could ti\ the general principle ami entrust 
its execution to the Commission, the Commission could very properly carry 
out this entrusted duty, not only by ['wuvi, the particular rate to a certain city, 
but by declaring that a whole series of rates to designated points must bear a 
certain relation with those towards other points, since in this way it would be 
carrying out the command of Congress to see that rates were reasonable and 
that discrimination was prevented. As to the division into ..ones, the Court 
found that no arbitrary or unreasonable action had been taken by the Com- 
mission in doing tins. It was, in fact, tin- most natural method oi \\\'w 
general relation of rates between different parts of the country, and was founded 
upon a practice and custom oi the railways themselves in dividing the country 
into territorial regions. "As we have pointed out, though somewhat modified 



130 THE NEW AMERICAN GOVERNMENT 

being rapidly suppressed and are punished with severity. Ovei 
$200,000 in fines are yearly levied for giving and accepting rebates, 
and vigorous prosecutions are being pushed wherever evidence is 
obtainable. Numerous shippers injured by other forms of dis- 
crimination have brought suits before the Commission and in the 
Federal Courts and have received substantial awards of damages. 
The chief obstacles in such prosecutions are the newness of the legal 
questions involved, the difficulty of obtaining evidence and the 
great expense and delay incurred in preparing a case against the fa- 
vored shipper or the railway. But the large amounts at stake have 
attracted some skillful attorneys to this field, the courts are becom- 
ing more familiar with the questions at issue and the legal prece- 
dents are now being rapidly fixed so that the shipper who has been 
injured by unfair discriminations has, with every year, a stronger 
likelihood of securing adequate damages. The greater danger of 
detection and heavy loss also makes rebating less attractive and the 
whole problem of giving to all producers a fair and equal oppor- 
tunity to use the railways is slowly nearing a solution. It would be 
greatly aided by some means of further hastening court procedure 
in law-suits on railway cases. 

Over 7,500 complaints, formal and informal, are yearly received 
by the Commission ; of its own accord it has made important use of 
its power to investigate, one inquiry for example resulting in a 
complete change and renovation in the methods of the express 
companies. The Commission considers this its most important 
single piece of work and sums up the results as follows: "The double 
collection of charges has been prevented, discriminatory rates have 
been or will be abolished, through routes have been and are being 
established which will secure a direct and properly expeditious 
service, and a new and original system of stating express rates by 
blocks has been devised and will soon be put into operation, under 
which it will be possible not only for the express agent himself, at a 
given station, to determine at a glance the rate between his office 

the zones as thus selected by the Commission were in substance the same as 
those previously fixed by the carriers as the basis of the rale making which was 
included in the tariffs which were under investigation, and therefore we may 
put that subject out of view. Indeed, except as to questions of power, there is 
no contention in the argument as to the inequality of the zones or percentages, 
or as to any undue preference or discrimination resulting from the action taken. 
But be this as it may, in view of the findings of the Commission as to the system 
of rates prevailing in the tariffs which were before it, of the inequalities and 
burdens engendered by such system, of the possible aggrandizement unnaturally 
beyond the limits produced by competition in favor of the competitive points 
and against other points by the tariff in question, — facts which we accept, and 
which indeed are unchallenged, — we see no ground for saying that the order 
was not sustained by the facts upon which it was based, or that it exceeded the 
powers which the statute conferred, or transcended the limits of the sound 
legal discretion which it lodged in the Commission when acting upon the sub- 
ject before it." This sets at rest finally the legal question as to the powers of 
the Commission over the transcontinental lines and over the long and short 
haul clause. 



THE POWERS OF CONGRESS 13I 

and every other express office in the United States, but even the 
shipper can qualify himself by a few moments' study to ascertain 
the same facts." 

The criminal prosecutions conducted at the request of the 
Commission are few in number; in 19 14, 58 new indictments were 
returned and 80 prosecutions were concluded. In 64 of these 
finished cases the defendants pleaded guilty, in 4 others convictions 
were secured, 11 cases were dismissed and no verdict of not guilty 
was rendered. Although those who violate the act show remarkable 
ingenuity in devising new methods of evasion, the courts usually 
take a broad view of the scope and purpose of the law and allow 
comparatively few to escape on merely technical grounds. For 
example, it was attempted to evade the law in New York by having 
the employes of several shippers also taken into the nominal 
service of the railway as "freight agents," and paid a heavy com- 
mission for such supposed service, this payment being in reality a 
rebate on the freight charges. 

By this subtle device it was thought that the rebate prohibition 
of the act could be circumvented but the district court regarded the 
whole transaction in its true light and fined the defendants from 
$1,000 to $3,000 with one day's imprisonment, while the railway 
representative who participated in the plan was fined $15,000. 
Another devious method was worked out between certain theatrical 
managers of Cincinnati and the passenger agents of a large railway 
system, by which the railway inserted advertisements in the theater 
programs and paid excessive amounts, in return for which travelling 
theatrical companies were routed over the company's lines. Here 
the carriers pleaded guilty and were obliged to pay a substantial 
fine. In other cases the shipper has given his promissory note to the 
carrier in payment of a freight bill, but the courts have held that all 
collections must be in actual money and all arrangements for 
payment in credits or any other property than money are illegal. 
One of the most valuable points established by the courts has been 
fixed in the cases decided against the railway lines which owned 
docks at the various Lake Erie ports; these carriers have leased out 
their dock properties to separate dock companies. The latter have 
been managed in the exclusive interest of certain shippers and 
have excluded others from the use of the terminal facilities owned by 
the railways. Such an exclusive lease is in substance a highly 
important advantage to one shipper as against others ami the 
district court in levying fines of $123,000 upon the companies con- 
cerned has established an important precedent governing this form 
of discrimination. 

The regulation of rates by the Commission lias frequently been 
criticized on the ground that the Commission often interferes to 
change rates without a sufficient regard for the economic conditions 

which justify thi' rates; it is complained that the Commission is too 
prone to make an arbitrary ruling which may change the whole 



I32 THE NEW AMERICAN GOVERNMENT 

traffic conditions of an industry or a district, or that it encourages 
one interest at the expense of another, without adequate knowledge 
of the facts. In short the Commission's rate making is said to be 
too theoretical and arbitrary. While there has doubtless been some 
truth in this criticism, yet the main results of the regulations have 
been to secure greater fairness of treatment for all shippers and for 
all sections of the country, and it was for this purpose that the law 
was passed. 

Proposed Control of Water Rates. — The House Committee on 
Merchant Marine, after an extended investigation lasting two 
years, introduced a bill in June, 19 14, providing for the extension of 
the powers of the commerce commission over water carriers in 
interstate and foreign trade, and the enlargement of the body to 
eleven members. This important measure proposes that all ship- 
ping combines, pools, and agreements shall be submitted to the 
commission, which shall either approve or disapprove them. If it 
approves, the agreement in question shall be exempt from the 
provisions of the Sherman Act; if it disapproves, prohibitions of the 
Sherman Act shall apply. Rebates are to be forbidden, as are also 
other forms of discrimination now widely practiced. The commis- 
sion is given full power to revise water rates and charges, and to 
prescribe rules of service within reasonable limits. For many years 
the high seas which, next to the air, are theoretically the freest 
medium of transport known, have been in reality the most com- 
pletely subject to control by combinations. It is no exaggeration 
to say that all important shipping lines carrying either the foreign 
trade of the United States or the regular coastwise traffic, have 
been held under the iron rule of "conferences" and pools and their 
agreements. It was no more possible to run an independent 
competitive line of steamships than it would have been to build a 
new transcontinental railway parallel with existing lines. The 
problem is all the more difficult because of the element of foreign 
control of many of the companies. The committee's bill shows a 
remarkable and statesmanlike view of the question, in that it does 
not attempt the impossible, viz., to forbid all pools and agreements 
in restraint of trade, but frankly acknowledges the necessity and 
benefits of many of these agreements and seeks to protect the pub- 
lic by requiring them to be submitted to the Federal authorities. 

Federal Arbitration of Railway Labor Disputes. — One of the 
greatest services rendered by the government has been its success- 
ful effort to prevent great railway strikes, by arbitration. The 
Erdman Act of 1898 as amended in 19 13 provides that whenever 
a labor controversy arises between an interstate carrier and its 
employes, a board of mediation, composed of the Federal Com- 
missioner of Mediation and two other government officials, all 
appointed by the President with the consent of the Senate, shall 
on the application of either party, use their best offices to bring 
the two disputants together and effect an amicable settlement 



THE POWERS OF CONGRESS 133 

between them. If this attempt fails, the board shall then induce 
the parties, if possible, to agree to arbitration. Arbitration is to be 
conducted either by a board of three members, chosen by the parties 
themselves and by the board of mediation, or else by a board of 
six members. In the latter case each disputant names two of the 
six, and these four name the other two. Or if they fail to agree in 
their choice, then the Board of Mediation names the renicining two 
members. The advantage of the larger board is that it offers less 
danger of a great dispute involving many millions of dollars, and 
thousands of employes, being settled by the vote of a single 
arbitrator, as was always the case in the three-men board of the 
original Erdman Act. Senator Newlands' amendment in 19 13 
seeks to remove this danger by enlarging the board to six members, 
and thereby greatly increases the willingness of the railway man- 
agers to entrust the settlement of their labor disputes to arbitration. 
The parties having consented to arbitrate, sign an agreement l 
which binds them to continue in peaceable relations until the 
award is filed and to accept the award for a period of at least one 
year. During the first three months neither side will discontinue 
relations without giving thirty days notice to the other. Within 
ten days from the filing of the award an appeal may be taken to the 
Circuit Court of Appeals. The Erdman Act has been successful 
in avoiding serious strikes and lockouts. The arbitration boards, 

x The provisions of the Act governing the agreement are: "Sec. 4. That the 
agreement to arbitrate — First. Shall be in writing; Second. Shall stipulate 
that the arbitration is had under the provision of this Act; Third. Shall state 
whether the board of arbitration is to consist of three or six members, according 
to the wishes of the parties; Fourth. Shall be signed by duly accredited repre- 
sentatives of the employer or employers and of the employees; Fifth. Shall state 
specifically the questions to be submitted to the said board for decision; Sixth. 
Shall stipulate that a majority of said board shall be competent to make a valid 
and binding award; Seventh. Shall fix a period from the date of the appoint- 
ment of the arbitrator or arbitrators necessary to complete the board, as pro- 
vided for in the agreement, within which the said board shall commence its 
hearings; Eighth. Shall fix a period from the beginning of the hearings within 
which the said board shall make and file its award: Provided, That this period 
shall be thirty days unless a different period be agreed to; Ninth. Shall provide 
for the date from which the said award shall continue effective and shall fix 
the period during which the said award shall continue in force; Tenth. Shall 
provide that the respective parties to the award will each faithfully execute the 
same; Eleventh. Shall provide that the award and the papers and proceed- 
ings, including the testimony relating thereto, certified under the hands of the 
arbitrators, and which shall have the force ami effect o\ a bill of exceptions, 
shall be filed in the clerk's office of the district court oi the United States for the 
district wherein the controversy arises or the arbitration is entered into, and 
shall be final and conclusive upon the parties to the agreement unless set aside 
for error of law apparent on the record; Twelfth, May also provide that any 
difference arising as to the meaning or the application of the provisions of an 

award made by a board of arbitration shall be referred back to the same board 
or to a subcommittee of such board for a ruling, which ruling shall have the 
same force and effect as the original award; and if any member of the original 
board is unable or unwilling to serve, another arbitrator shall be named in the 
same manner as such original member was named." 



134 THE NEW AMERICAN GOVERNMENT 

appointed under it, have rendered decisions affecting a compara- 
tively small number of highly important cases involving hundreds 
of thousands of employees. The public, while it understands little 
of the controversy before the board, is inclined to back up the 
board's decisions, and it would be extremely difficult for either 
party to violate an award without incurring public disfavor. 

Federal Control over State Trade. — We come now to the consti- 
tutional problem — Can the Federal authorities regulate intrastate 
commerce? In general, the answer is No. The rule for interpreting 
the powers of Congress in such cases is given in the ioth Amend- 
ment, which provides that "The powers not delegated to the 
United States by the Constitution, nor prohibited by it to the 
States, are reserved to the States respectively or to the people." 
If we are doubtful as to whether Congress possesses a certain power 
or not, we are to apply this simple test — Does the Constitution 
directly or indirectly confer the power on Congress? If not, then 
such a power belongs to the individual States or the people, not to 
Congress. Applying this to commerce entirely within a State we 
find that the Constitution does not grant the authority over such 
trade to Congress. Accordingly that power is reserved to the State. 
But ofttimes national and State trade are so closely mingled that 
it is impossible for Congress to regulate the former without includ- 
ing the latter. This is notably the case in the national laws on 
navigation and railroads. In the decision on the Daniel Ball, 
10 Wallace, 557; 1870, an important principle was fixed in this 
problem. The Daniel Ball was a steamer navigating the Grand 
River in the State of Michigan between Grand Rapids and Grand 
Haven. It did not pass out of the State but was engaged in trans- 
porting merchandise and passengers between those places. The 
question arose whether under such circumstances it must be 
licensed or inspected under the laws of the Federal government. 
Its owners claimed that it need not secure such a license since it was 
engaged solely in intrastate trade within the boundaries of Michigan, 
but the government contended that the Grand River was a naviga- 
ble water of the United States and that the steamer transported 
merchandise which was consigned to ports and places outside the 
State so that the transportation by steamer was only one link in a 
chain of interstate trade, much of the goods in question being taken 
from the steamer and carried to its destination outside the State. 
The Supreme Court decided that the steamer must conform with 
the Federal inspection and license laws, on the ground (1) that the 
Grand River was undoubtedly an avenue of interstate trade; 
(2) The merchandise and passengers carried by the boat did in 
many instances pass on from the State of Michigan directly to other 
States after leaving the vessel, so that the vessel's passage was in 
reality only one part of a general interstate shipment. On these 
grounds it was to be considered an agency of interstate commerce, 
and as such, subject to the Federal regulation. This decision e£tab- 



THE POWERS OF CONGRESS 135 

iishes the rule that even an agency of intrastate carriage is subject 
to Federal regulation if its transport forms part of an interstate 
system. 

Federal Control Extended. — A further advance in this doctrine 
is recorded in the case of Baltimore and Ohio v. Interstate Com- 
merce Commission, 221 U. S. 612; 1911. Here Congress had by 
the Act of March 4, 1907, fixed a maximum of sixteen hours of work 
daily for employees engaged in interstate railway labor, in order to 
protect the lives and safety of passengers and property. The law 
also required interstate companies to report to the Interstate Com- 
mission the number of hours of work of their employees. The 
Baltimore and Ohio objected on the ground that many of its 
employees were engaged in both intra and interstate commerce and 
that Congress could not regulate the hours of labor or require re- 
ports concerning these hours in intrastate trade, because Congress 
had no authority under the Constitution to regulate intrastate 
matters. If this contention of the railway had been accepted by 
the Court a Federal limitation of hours of labor would have been 
impossible since all the railways practically require duties in both 
inter and intrastate trade of their employees and the whole question 
would thus have escaped the authority of Congress. But the 
Supreme Court in a decision rendered by Justice Hughes declared 
that where Congress has been given the undoubted authority to 
regulate interstate relations of employer and workman, it may 
exercise this power even in cases where the workman is likewise 
engaged in intrastate duties. "And thus many employees who 
have to do with the movement of trains in interstate transportation 
are, by virtue of practical necessity, also employed in intrastate 
transportation. This consideration, however, lends no support 
to the contention that the statute is invalid. For there cannot be 
denied to Congress the effective exercise of its constitutional 
authority. — The fundamental question here is whether a restric- 
tion upon the hours of labor of employees who are connected with 
the movement of trains in interstate transportation is compre- 
hended within this sphere of authorized legislation. This question 
admits of but one answer. — If then it be assumed, as it must be, 
that in the furtherance of its purpose Congress can limit the hours 
of labor of employees engaged in interstate transportation, it 
follows that this power cannot be defeated either by prolonging the 
period of service through other requirements of the carriers or by 
the commingling of duties relating to interstate and intrastate 
operations." This decision shows that in its efforts to protect, 
control and regulate national commerce the Federal government is 
free to defend such commerce from all the actual dangers which 
threaten it and that its protective measures may extend in a 
practical way even to the control of Slate trade where such comes in 
contact with the national commerce. 

The Minnesota Rate Cases. — We have to note also the decision 



136 THE NEW AMERICAN GOVERNMENT 

on the other side of the line in the celebrated Minnesota Rate 
cases. In this important controversy the State of Minnesota 
through its railway commission had lowered freight rates on hauls 
entirely within the State, by about 20 per cent. Since a number of 
transcontinental lines traversed the State of Minnesota it was 
found that the lowering of rates within the State resulted in the 
reduction of freight rates on interstate hauls passing through the 
commonwealth. Accordingly the Great Northern and other 
interstate roads brought suit to prevent the execution of the Minne- 
sota Commission's orders and claimed that the commission as a 
State authority was in effect changing interstate rates and thereby 
interfering with the rate system which had been approved by the 
national authorities. This, if proven, would be a State obstruction 
or interference with interstate trade, and would be unconstitutional. 
In the Circuit Court, Judge Sanborn ruled in favor of the railways 
against the State commission, claiming that no State could regulate 
interstate rates and that such would be the immediate and neces- 
sary effect of the State commission's reduction of intrastate rates. 
On appeal to the Supreme Court that body decided in 19 13 that 
the State authority was constitutional so long as it was restricted to 
rates within the State and so long as it did not reduce these rates 
to such a low point that the railways were unable to earn a reason- 
able return upon their investment. 1 The decision is a momentous 
one, opening up as it does the possibility that unless the Federal 
authorities act any State commission may directly and necessarily 
change the through rates on the transcontinental lines passing 
through its territory, by the simple device of lowering local rates 
within its own boundaries. 

The Shreveport Case. — The Minnesota case left unanswered the 
important question whether local rates fixed by a State commission 
in such a way as to affect and influence national trade, could be 
changed by the Federal commission. This point has been settled 
in Houston Railway Company v. U. S., decided June 8, 1914, known 
as the Shreveport case. Here the Texas railroad commission had 
arranged certain local rates in such a way as to favor Dallas and 
Houston, Texas, as distributing centers, giving these points low 
rates to the surrounding territory. It had also established high 
rates from the eastern boundary to the interior of the State in order 
to bar out shipments from Shreveport, Louisiana. Shreveport 
aimed to be a distributing centre rivaling Houston and Dallas for 
the trade of the intermediate district. Could the Federal authori- 
ties prevent this discrimination? On March 11, 191 2, the interstate 
commerce commission, at the request of the Louisiana railroad 
commission and the Shreveport mercantile interests, ordered the 
railways to reduce the through rates in question to the same basis 
that they charged under similar conditions on hauls within the State of 
Texas. To this the railways objected claiming that the national 
1 Simpson v. Shepard, 231 U. S.; 1913. 



THE POWERS OF CONGRESS 137 

government had no authority over rates within a State and could 
not control the relation between State and interstate charges. The 
Supreme Court, however, held that any unjust discrimination such 
as existed against Shreveport, Louisiana, could be remedied by 
Federal action and that the proper method of doing this was to 
establish a reasonable relation between the inter and intrastate 
rates. The commission had done no more than this, and while it 
had no authority whatever to regulate intrastate charges so long as 
they affected only local traffic, it could constitutionally fix the 
relation between these charges and those on interstate traffic over 
the same lines. The Court pointed out that when the Federal 
authorities acted on such a relation of rates, their authority was 
supreme. "It is to be noted — as the government has well said in its 
argument in support of the commission's order — that the power to 
deal with the relation between the two kinds of rates, as a relation, 
lies exclusively with Congress. It is manifest that the State cannot 
fix the relation of the carrier's interstate and intrastate charges 
without directly interfering with the former, unless it simply follows 
the standard set by Federal authority." 

The principle of Federal authority over State commerce when 
mingled with national trade, was more firmly fixed by the decision 
in Southern Railway v. United States, 222 U. S. 20; 191 1. The 
Federal Safety Appliance Act of 1903 required that safety brakes 
and couplers should be placed on all trains, locomotives, tenders, 
cars, etc., used on any railroad engaged in interstate commerce and 
on all other locomotives, cars, etc., "used in connection therewith." 
The Southern Railway in 1907 had operated three cars with defec- 
tive couplers, in intrastate traffic but had moved them on a line 
which was also used by interstate trains, thereby violating the 
provision of the Act. In the prosecution which followed the Rail- 
way argued that Congress had no authority to regulate intrastate 
cars, but the Supreme Court decided that when such cars traversed 
an avenue of interstate trade they became subject to Federal 
regulation because of the danger which they threatened to such 
trade. The Supreme Court, through Justice Van Devanter, said: 
"We come, then to the question whether these acts are within the 
power of Congress under the commerce clause of the Constitution, 
considering that they are not confined to vehicles used in moving 
interstate traffic, but embrace vehicles used in moving intrastate 
traffic. The answer to this question depends upon another, which 
is, Is there a real or substantial relation or connection between what 
is required by these acts in respect of vehicles used in moving 
intrastate traffic and the object which the acts obviously are 
designed to attain, namely, the safety oi interstate commerce and oi 
those who are employed in its movement? Or, stating it in another 
way, Is there such a close or direct relation or connection between 
the two classes of traffic, when moving over the same railroad, as to 
make it certain that the safety of the interstate traffic and of those 



138 THE NEW AMERICAN GOVERNMENT 

who are employed in its movement will be promoted in a real or 
substantial sense by applying the requirements of these acts to 
vehicles used in moving the traffic which is intrastate as well as to 
those used in moving that which is interstate? If the answer to this 
question, as doubly stated, be in the affirmative, then the principal 
question must be answered in the same way. And this is so not 
because Congress possesses any power to regulate intrastate com- 
merce as such, but because its power to regulate interstate com- 
merce is plenary and competently may be exerted to secure the 
safety of the persons and property transported therein and of those 
who are employed in such transportation, no matter what may be 
the source of the dangers which threaten it. That is to say, it is no 
objection to such an exertion of this power that the dangers in- 
tended to be avoided arise, in whole or in part, out of matters 
connected with intrastate commerce. 

" Speaking only of railroads which are highways of both inter- 
state and intrastate commerce, these things are of common knowl- 
edge: Both classes of traffic are at times carried in the same car, and 
when this is not the case the cars in which they are carried are 
frequently commingled in the same train and in the switching and 
other movements at terminals. Cars are seldom set apart for ex- 
clusive use in moving either class of traffic, but generally are used 
interchangeably in moving both; and the situation is much the 
same with trainmen, switchmen, and like employees, for they 
usually, if not necessarily, have to do with both classes of traffic. 
Besides, the several trains on the same railroad are not independent 
in point of movement and safety, but are interdependent, for 
whatever brings delay or disaster to one or results in disabling one 
of its operatives is calculated to impede the progress and imperil 
the safety of other trains. And so the absence of appropriate safety 
appliances from any part of any train is a menace not only to that 
train but to others." 

REFERENCES 

F. H. Cooke: The Commerce Clause of the Federal Constitution. 

F. N. Judson: Interstate Commerce. 

T. H. Calvert: Regulation of Commerce under the Federal Constitution. 

Barnes and Milner: Selected Cases. 

E. R. Johnson and G. G. Huebner: Railway Rates and Traffic. 

Annual Report of Interstate Commerce Commission. 

Interstate Commerce Commission cases in the Federal courts, 1887-1914, 
2nd edition, Government Printing Office. 

W. Z. Ripley: Railroads, Rates and Regulations. 

Chas. P. Neill: Mediation and Arbitration of Railway Labor Disputes in the 
U. S. Bulletin No. p8 U. S. Bureau of Labor. 

QUESTIONS 

1. Explain why government regulation of business is demanded by con* 
sumers. 

2. Show why it is also demanded by investors and producers. 



THE POWERS OF CONGRESS I39 

3. Give some idea of the way in which the Federal power to regulate com- 
merce touches the various interests of the people. 

4. Explain the meaning of the word "commerce" as used in the Constitu- 
tion. 

5. Show how the meaning of the word has been enlarged by modern inven- 
tions and discoveries. 

(j&y Does it include manufacturing? Cite an authority. 

7. Outline briefly the general methods and kinds of regulation adopted by 
Congress. 

8. Could Congress regulate a company which has its factory in Philadelphia 
and ships its goods to San Francisco and Seattle? Reasons. 

9. Could Congress regulate the manufacture of the goods in Philadelphia? 
Reasons. 

10. Mention several prominent companies whose business is now or could 
be constitutionally regulated by Congress. 

n. Explain what a rebate is and why it is prohibited by the interstate com- 
merce act. 

12. Give a brief summary of the most important powers of the interstate 
commerce commission. 

13. Mention several forms of discrimination practiced on the railways in the 
past and explain the authority of the commission to prevent such discrimination 
under the present laws. 

14. Explain the chief causes of railway discrimination between cities and 
districts. Why are the railways often forced to give such discriminations against 
their-will? 

Qr%J What power has the interstate commerce commission over this situation? 

16. John Doe tries unsuccessfully to secure a rebate from the railway, but is 
refused. Richard Roe secures a special rate lower than the published rate, but 
is given no rebate. Thomas Jenldns accepts a free pass from the railway, in 
return for which he ships freight over the railway's line. State all of the parties 
who have violated the law. Explain fully. 

17. Is it legal for a large shipper of fruits to secure a lower charge for icing 
the refrigerator cars which he hires from a private car company, than is paid 
by other fruit growers shipping over the same line? 

18. What is misdescription? Is it an offence by the railway or the shipper? 
Is it legal? Explain. 

19. Explain the importance of car supply in modern coal mining or in other 
industries. If a coal operator does not secure his proper proportion of cars what 
redress has he? 

20. May a railway give any preference whatever to a shipper or to any kind 
of traffic or to any locality? Explain fully. 

2 1 . What is the long and short haul clause? 

22. How does it affect the rates west of the Missouri River? 

23. How does the interstate commerce law provide for the quicker settlement 
of disputes? 

24. What was the Commerce Court? Why was it established and why 
abolished? 

25. Has the commission regulative power over anything besides railways? 

26. Give some idea of the business transacted by the commission. 

27. What are your impressions as to the sueeess of the commission's regula- 
tion of rates? 

28. Outline the proposal to extend the commission's authority over water 
rates and explain why it is proposed. 

2(). What authority has the government over interstate railway labor 
strikes and disputes? 

30. Outline the Railway Arbitration Aet and explain its practical results. 

31. Does the Constitution give Congress any power over intrastate trade? 

32. A steamer is plying the waters o\ the kittle River, carrying merchandise 

and passengers who are destined from one State to another, but the steamer 
itself only transports them from one point to another within the same State. 



I/J.O THE NEW AMERICAN GOVERNMENT 

The river opens into a large lake part of which lies in another commonwealth. 
Under these circumstances would the national navigation and license laws apply 
to the steamer? 

33. Congress passes a law forbidding interstate railways to keep their 
employees at work more than sixteen hours in any one day. The purpose of the 
act is greater safety on interstate lines. Could a railway which is subject to the 
act employ its workmen for fifteen hours on interstate work and then two hours 
on local business in intrastate trade? Explain the reasons and cite a precedent. 

34. A Federal act provides that safety brakes shall be placed on all trains 
used in connection with interstate commerce. An interstate line operates three 
cars without such brakes locally in its intrastate business and in doing so moves 
them over a part of its interstate line. Would the application of the Federal 
act to these cars be constitutional? Reasons. Cite an authority. 

35. A State railway commission fixes high rates from the State boundaries to 
interior points in order to keep out trade from the outside and low rates between 
interior points, in order to promote local trade. Can the interstate commerce 
commission interfere with this system in such a way as to promote outside trade 
into the State? Reasons and authority. 

36. Prepare an essay on — "The Need for and Results of Federal Railway 
Regulation." 



CHAPTER VII 

POWERS OF CONGRESS— Continued 
THE SHERMAN ANTI-TRUST ACT 

Purpose and Provisions. — The second step in our national policy 
of regulation corresponded to the popular belief that trusts, com- 
binations and monopolies were evils in themselves, and should be 
abolished by law. This thought lies at the basis of the now cele- 
brated Act of 1890, known as the Sherman law, which provides as 
follows: — 

Sec. 1. "Every contract, combination in the form of trust or 
otherwise, or conspiracy, in restraint of trade or commerce among 
the several States, or with foreign nations, is hereby declared to be 
illegal. Every person who shall make any such contract or engage 
in any such combination or conspiracy, shall be deemed guilty of a 
misdemeanor, and, on conviction thereof, shall be punished by 
fine not exceeding five thousand dollars, or by imprisomnent, not 
exceeding one year, or by both said punishments, in the discretion 
of the court. 

Sec. 2. "Every person who shall monopolize, or attempt to 
monopolize, or combine or conspire with any other person or per- 
sons, to monopolize any part of the trade or commerce among the 
several States, or with foreign nations, shall be deemed guilty of a 
misdemeanor, and, on conviction thereof, shall be punished by fine 
not exceeding five thousand dollars, or by imprisonment not 
exceeding one year, or by both said punishments, in the discretion 
of the court. 

Sec. 3. "Every contract, combination in the form of trust or 
otherwise, or conspiracy, in restraint of trade or commerce in any 
Territory of the United States or of the District of Columbia, or in 
restraint of trade or commerce between any such Territory and 
another, or between any such Territory or Territories and a in- 
State or States or the District of Columbia, or with foreign nations, 
or between the District of Columbia and any State or States or 
foreign nations, is hereby declared illegal. Every person who shall 
make any such contract or engage in any such combination or 
conspiracy, shall be deemed guilty of a misdemeanor, and, on 
conviction thereof, shall be punished by fine not exceeding five 
thousand dollars, or by imprisonment not exceeding one year, or by 
both said punishments, in the discretion of the court. 

Sec. 4. "The several circuil (now district) courts oi the United 
States are hereby invested with jurisdiction to prevent and restrain 

141 



142 THE NEW AMERICAN GOVERNMENT 

violations of this act; and it shall be the duty of the several district 
attorneys of the United States, in their respective districts, under 
the direction of the attorney general, to institute proceedings in 
equity to prevent and restrain such' violations. Such proceedings 
may be by way of petition setting forth the case and praying that 
such violation shall be enjoined or otherwise prohibited. When the 
parties complained of shall have been duly notified of such petition 
the court shall proceed, as soon as may be, to the hearing and 
determination of the case; and pending such petition and before 
final decree, the court may at any time make such temporary re- 
straining order or prohibition as shall be deemed just in the 
premises. 

Sec. 5. "Whenever it shall appear to the court before which any 
proceeding under section four of this act may be pending, that the 
ends of justice require that other parties should be brought before 
the court, the court may cause them to be summoned, whether 
they reside in the district in which the court is held or not; and 
subpoenas to that end may be served in any district by the marshal 
thereof. 

Sec. 6. "Any property owned under any contract or by any 
combination, or pursuant to any conspiracy (and being the subject 
thereof) mentioned in section one of this act, and being in the course 
of transportation from one State to another, or to a foreign country, 
shall be forfeited to the United States, and may be seized and 
condemned by like proceedings as those provided by law for the 
forfeiture, seizure, and condemnation of property imported into the 
United States contrary to law. 

Sec. 7. "Any person who shall be injured in his business or 
property by any other person or corporation by reason of anything 
forbidden or declared to be unlawful by this act, may sue therefor 
in any circuit [district] court of the United States in the district in 
which the defendant resides or is found, without respect to the 
amount in controversy, and shall recover threefold the damages by 
him sustained, and the costs of suit, including a reasonable attor- 
ney's fee. 

Sec. 8. "That the word 'person,' or 'persons,' whenever used 
in this act shall be deemed to include corporations and associations 
existing under or authorized by the laws of either the United States, 
or the laws of any of the Territories, the laws of any State, or the 
laws of any foreign country." 

Does the Sherman Act Apply to Manufactures? — For many 
years the Sherman Act lay dormant upon the statute books. It 
had been passed in response to a vague but strong popular senti- 
ment; its meaning was indefinite and its possible interpretation 
doubtful. The first question that came up under the law was — does 
the act apply to combinations of manufacturers? The decision in 
the case of United States v. E. C. Knight Sugar Refining Company, 
156 U. S. in 1895 was, as we have seen, that the law was designed to 



THE POWERS OF CONGRESS 143 

apply to commerce not manufactures, that manufacturing did not 
lie within the control of Congress and that a combination of sugar 
refiners, even though it were made to form a monopoly, was not a 
violation of the law unless these same refiners or manufacturers 
attempted also to monopolize interstate commerce in sugar. 

The Knight case has been greatly misunderstood although the 
principle which it decides, that manufacturing is not commerce, is 
comparatively simple. This by no means implies that a manufac- 
turing company, which also engages in interstate trade by selling 
I its products across State lines, is exempt from the provisions of the 
I act. This was the essential point of the decision in Swift et al. v. 
United States, 196 U. S. 375; 1905. In this suit the Government 
accused a number of meat packing concerns, situated in Chicago 
and other points, of a combination in restraint of trade and asked 
the Federal court to grant an injunction forbidding the continuance 
of the combine. The Government maintained that the packers had 
agreed (a) not to bid against each other in purchasing live stock; 
that they thereby kept down the price of steers in the open market; 
(b) that they had raised prices temporarily in order to induce large 
numbers of shippers to consign heavy shipments of cattle to the 
stock yards in Chicago and other cities; after a great number of 
steers had been so received in the yard the representatives of the 
packing companies by agreement refused to buy, thereby causing a 
heavy fall in prices and enabling their companies to buy in the 
entire supply at a greatly reduced rate; (c) that the companies had 
conspired together through their representatives at various retail 
points to fix the prices of fresh meats to the retailers; (d) that they 
also by agreements, had arranged uniform terms of sale to the 
retailers and that certain retailers who had refused to conform to 
these terms were blacklisted by all the companies and thereby pre- 
vented from obtaining adequate supplies of fresh meat ; (e) that the 
companies had also agreed together to charge a uniform scale of 
cartage fees, this scale being so high as to form a heavy and im- 
proper burden upon the retail trade; (f) that they had entered into 
conspiracies with the railways and thereby secured lower freight 
rates on their products than were granted to their competitors. 
The lower court held that these acts constituted restraint of trade 
and it accordingly granted the injunction. The packers appealed to 
the Supreme Court which considered the case in a lengthy opinion 
and decided that the various acts above mentioned were a com- 
bination in restraint of trade and would accordingly be a violation 
of the law. The injunction was upheld and the principle established 
that combinations not to compete or to impose oppressive terms and 
conditions upon buyer or seller, were contrary to the Sherman Act. 
The Act Applied to the Railways. —The next two problems, which 
arose together, were: Does the Act apply to railways also, and is it 
intended to prohibit only unreasonable combinations in restraint of 
trade, such as those forbidden by the English common law? Both 



144 THE NEW AMERICAN GOVERNMENT 

of these questions came before the Court in the case of the United 
States v. Trans-Missouri Freight Association, 166 U. S. 290; 1897. 
This Association was a combination of several western railways 
formed for the purpose of fixing charges on competitive freight 
traffic west of the Missouri River. The agreement did not prevent 
the railways from competing with each other by offering better 
service, but only fixed a minimum rate below which the railways 
forming the association were not to bid in seeking freight traffic. 
When prosecuted under the Sherman Act the association claimed 
that the trust law was not intended to cover the railways, since 
they were already subject to the Interstate Commerce Act, which 
amply protected the snipper and the general public, and prevented 
unreasonable freight rates. They contended further that the 
whole purpose of the Sherman Act was to suppress industrial and 
commercial combinations, which had been formed to exploit and 
oppress the consumer, whereas the entire question of railway rates 
had been separately confided by Congress to the Interstate Com- 
merce Commission. This argument, though very strong, was not 
upheld by the Court. On the contrary, it ruled that the Sherman 
Act was intended to apply to all combinations in restraint of inter- 
state trade, whether composed of commercial concerns or of rail- 
ways, and that the Act supplemented the existing railway laws 
by adding new and stringent provisions forbidding restraint of 
trade. 

On the question of reasonableness of the combination the argu- 
ment of the defence was even stronger. It was shown that the main 
purpose of the Association was to prevent ruinous cutting of freight 
rates. The disastrous rate wars which so demoralized and injured 
the railway business, drove many companies into bankruptcy and 
eventually injured the shipper himself by making the railway weak, 
inefficient and less able to offer the facilities needed. In order to 
avoid these devastating conflicts between the carriers some union 
of the competitive interests must be formed to fix a minimum 
charge which all lines would observe. This, the Association urged, 
had been its work and its reasonableness and even necessity could 
not be doubted by anyone familiar with transportation conditions. 
But the Supreme Court refused to accept this view. Although four 
of the Justices dissented from the opinion, the majority held that 
the Sherman law forbade every agreement or combination whether 
reasonable or unreasonable, if formed to restrict competition in 
interstate commerce. The Court ruled that the words, "Every 
agreement, in restraint of trade" were conclusive. This decision 
was reaffirmed and strengthened in the Joint Traffic Association 
case, 171 U. S. 505; 1898, in which the eastern traffic lines were 
prohibited from making a similar agreement because it would 
restrain competition among the lines concerned. The rule was later 
modified in the Standard Oil and American Tobacco cases de- 
scribed below. 



THE POWERS OF CONGRESS 145 

Local Exchanges Dealing in Interstate Products. — The fourth 
question is: Does the law prohibit an exclusive combination of local 
dealers known as an "exchange" where the members deal in cattle 
which may have been shipped in from another State? In the cases 
of Hopkins v. United States and United States v. Anderson, 171 
U. S. 578 and 604; 1898, the legality of the Traders' Live Stock 
Exchange of Kansas City was disputed. An agreement among 
purchasers of cattle for the purpose of regulating and controlling 
the local business among themselves had been entered into, and one 
of the rules provided that the members of the Exchange should not 
deal with any yard trader who was not a member of the Exchange. 
The Supreme Court upheld the legality of such an Exchange under 
the Sherman law, declaring " there is no evidence that these defend- 
ants have in any manner other than by the rules above mentioned 
hindered or impeded others in shipping, trading, or selling their 
stock, or that they have in any way interfered with the freedom of 
access to the stock yards of any and all other traders and pur- 
chasers, or hindered their obtaining the same facilities which were 
therein afforded by the stock yards company to the defendants as 
members of the Exchange, and we think the evidence does not 
tend to show that the above results have flowed from the adoption 
and enforcement of the rules and regulations referred to." The 
Court seemed to feel that any burden which the Exchange placed 
upon trade was so slight and so indirect as to be entirely negligible. 

Closely related to the Live Stock Exchange cases is the decision 
in Board of Trade of Chicago v. Christie Grain & Stock Company, 
198 U. S. 236; 1905. Here the Board of Trade had made contracts 
with telegraph companies by which it furnished quotations of the 
transactions in the wheat, grain and provision pits of the Board to 
the telegraph companies, to be distributed to members and sub- 
scribers, with the explicit understanding that the telegraph com- 
panies would not furnish these quotations to any bucket shop or 
place where they would be used as a basis for bets or illegal con- 
tracts. The telegraph companies submitted applications for these 
quotations to the Board for investigation. The Christie Company 
secured the quotations in some way not disclosed. The Board of 
Trade asked for an injunction against the Christie Company on the 
ground that the latter was using the property of the Board namely 
its quotations, wrongfully, and without authorization. The Christie 
Company answered that the contract between the Board and the 
telegraph company to restrict the quotations was an agreement in 
restraint of interstate trade, since the ([notations covered transac- 
tions of national commerce. The defendant claimed that the true 
purpose was to exclude all persons who did not deal through mem- 
bers of the Board of Trade. The Federal Supreme Court, however, 
ruled that the evidence showed "a scheme to exclude bucket shops 
as shown and proclaimed, and the defendants called this an attempt 
at a monopoly in bucket shops. But it is simply a restraint on the 



146 THE NEW AMERICAN GOVERNMENT 

acquisition for illegal purposes of the fruits of the plaintiff's work." 
Accordingly an injunction was granted forbidding the Christie Co. 
to use the quotations in the unauthorized way mentioned. 

Agreements not to Compete. — Fifth, is an agreement between 
various producing, trading companies not to compete on city con' 
tracts, prohibited by the Act? This interesting and important 
question was decided in Addyston Pipe Co. v. United States, 175 
U. S. 211 ; 1899. It was proven that six different shippers located in 
various States had combined in a pool to control the manufacture 
and sale of cast iron pipe. They agreed to maintain prices, at the 
same time keeping up a show of public competition in supplying 
city governments by making separate bids for contracts but 
offering these bids in such a way as to prevent any real competition 
between the concerns in the pool. The various companies agreed in 
advance as to which should secure the contract; this concern bid 
low and its fellow members in the agreement bid high. The Court 
held this to be a combination in restraint of interstate commerce in 
the sense of the Sherman Act and therefore illegal. Although a 
monopoly of manufacturing was not illegal, an agreement to sup- 
press competition in the interstate sale and shipment of an article 
was forbidden by the law. A similar point arose in Montague & 
Co. v. Lowry, 193 U. S. 38; 1904. A number of manufacturers and 
dealers in tiles, mantels and grates in California and other States 
had formed a combination by which: first — dealers would not pur- 
chase materials from manufacturers who were not members of the 
Association. Second — dealers and manufacturers would not sell 
tiles for less than official list prices to persons not members of the 
Association; members to receive a discount of 50%. Membership 
was fixed by certain rules, one of which provided that the applicant 
must carry $3000 worth of stock. An outside firm, not a member of 
the Association and not carrying $3000 worth of stock, finding its 
business injured by the agreement, brought suit for damages under 
the Sherman Act. The Court held that the combination was in 
substance an agreement to restrain trade between the States, in 
that it was intended and did prevent the free and unrestricted pur- 
chase and sale of goods and obstructed the business of those who 
were not members, that it was forbidden by the Act and that the 
injured party could recover three times the actual damages caused 
by the combination. 

The Holding Company. — The sixth question arising under the 
law was: Can a "holding company" be formed to own and control 
the stock of several competing companies? This question first 
arose in the merger of certain railway lines leading to the North- 
west notably the Great Northern and Northern Pacific. In order 
to accomplish this merger the Northern Securities Company was 
formed and purchased the stock control of each of the two com- 
peting lines mentioned. The merger was attacked in the United 
States courts and in 1904 was declared illegal by the Supreme 



THE POWERS OF CONGRESS 147 

Court in Northern Securities Company v. United States, 193 U. S. 
197; 1904, on the ground that it brought about by indirect but 
effective means the suppression of competition between the North- 
ern Pacific and Great Northern Railways. The Court declared that 
even though such competition was not immediately suppressed as a 
result of the merger, yet the possible suppression and the evident 
attempt to secure it were sufficient grounds to render the merger 
illegal. The Court therefore ordered that the stock of the two 
companies be distributed proportionally among the share holders 
in the Northern Securities Company. 

The great turning point in the interpretation of the Act came in 
191 1, when the question of the legality of the holding company was 
again presented in the famous Standard Oil case, Standard Oil Co. 
v. U. S., 221 U. S. 1; 1911. The issue here was at root a simple 
one. The Standard Oil Company of New Jersey with $100,000,000 
capital was a holding corporation which owned the stock control of 
nineteen subordinate and previously independent companies en- 
gaged in the manufacture, transportation and sale of petroleum and 
its products. In 1906, a government suit was brought to dissolve 
the combine, as a violation of the Sherman Act. The government 
contended that the holding company was a device by which the 
Standard Oil interests had suppressed all competition among the 
various subordinate concerns. The Circuit Court adopted this 
view and declared the Standard Oil Company of New Jersey to be 
a combination in restraint of trade. An appeal was taken to the 
Supreme Court and in May, 191 1, that tribunal upheld the decision 
and required the Standard Oil Company to dissolve its combination 
with the subsidiary companies within six months. The Court 
however declared that the mere existence of a combination in 
commerce is not always illegal unless it involves a clearly proven 
plan to restrain trade and competition. The courts must therefore 
decide "in the light of reason'' in each case whether the combina- 
tion complained of is intended to destroy competition and to make 
use of illegitimate means of expanding its business or whether, on 
the other hand, it is an honest and legitimate attempt to introduce 
economies, uniform systems and methods and the benefits of large 
scale management, and involves only such restraint of trade as is 
natural and reasonable. In the latter case it is not a violation of 
the Sherman Act. The Tobacco case, U. S. v. American Tobacco 
Company, 221 U. S. 106; 1911, while slightly different in form, in- 
volved the same legal principle. The tobacco company together 
with its accessory concerns controlled several subsidiary and 
previously competitive companies and thereby directed their 
policy. Owing to its aggressive methods in attempting to destroy 
competitors it was prosecuted in [906 under the Sherman Act and 
after an appeal to the Supreme Court, it too was declared to be a 
monopoly in violation of the Act. The Court ordered a reorganiza- 
tion of the companies involved in the combination, within eight 



148 THE NEW AMERICAN GOVERNMENT 

months, failing which a receiver would be appointed to wind up 
their affairs. The Oil and Tobacco decisions are of value because 
they permit the forming of combinations based on greater efficiency, 
but forbid the destructive and extortionate combination whose sole 
purpose is to smother competition in order to squeeze higher prices. 
This principle is the much discussed "rule of reason" set forth in 
both decisions. The rule is simply expressed by the question — 
"what is the purpose and effect of the combine?" If the injured 
complainant or the public prosecutor can produce evidence showing 
a destructive or extortionate intention or effect on the part of the 
combination, the law has been violated, and the combine may be 
dissolved by order of the court, its leaders fined and imprisoned, and 
injured parties may recover three times the damages suffered. 

The Rule of Reason Applied. — The rule of reason was still more 
clearly presented by the decision in United States v. Terminal R. R. 
Association of St. Louis, 224 U. S. 383, 191 2, which applied the 
law to an entirely different set of conditions. In 1889, Jay Gould 
had formed the St. Louis Railroad Terminal Association, composed 
of several railways entering the city, for the purpose of acquiring 
and developing terminal facilities for the common use of the 
carriers. The agreement provided that the terminal company 
should be controlled by the Board of Directors, one director from 
each of the proprietary companies owning the terminal stock. 
New members should be admitted to the association only with 
the unanimous consent of all the proprietary companies and upon 
payment of such a consideration as the directors might determine. 
In order to prevent future competition and to insure a monopoly of 
the avenues of entrance to the city each railroad had to agree to 
use only the terminal company's facilities in entering St. Louis. 
Each line must also agree not to build its own bridges and tunnels 
nor establish its own ferries into the city. The terminal company 
gradually secured by purchase or lease all the facilities, bridge ap- 
proaches and ferries crossing the Mississippi River at that point and 
acquired complete control of all the terminal entrances and exits of 
the St. Louis region. In doing so it established its own rates for 
the territory under its control, and allowed none of the entering 
lines to bill their freight or passenger traffic to St. Louis proper, but 
required them to bill to East St. Louis on the Illinois side of the 
river, and thence the terminal company rebilled to St. Louis. The 
attorney general having begun a prosecution against this combina- 
tion as being in restraint of trade under the Sherman Act, and the 
case coming to the Supreme Court, that tribunal declared that the 
economic advantages to the city and to the railway lines from the 
unification of terminal facilities was clear and undoubted; that it 
was neither advisable nor profitable to the city or the railways to 
have a complete duplication of such facilities for each railway 
because of the prohibitive cost of bridges over the river and tunnels 
through the high river banks. In spite of this undoubted economic 



THE POWERS OF CONGRESS 149 

advantage, however, the court found that the original terminal 
company had purchased its two chief competitors, the Wiggins 
Ferry Company, which operates a line of freight ferries across the 
river and the Merchants Bridge Company, which owned the 
largest bridge open to all entering railway lines, and that the 
terminal company had made these purchases as a means of extend- 
ing its control and preventing competition. The court declared this 
combination to show an intent or purpose to restrain trade across 
the river and to be a violation of the Sherman Act in this respect. 
To the answer made by the defendants that all the various railways 
entering the city might be allowed by the terminal company to use 
its facilities upon payment of a suitable charge and that the terminal 
association was in effect only the bona ride agent of the various 
railways and was employed for the purpose of collecting and dis- 
tributing their freight and connecting their lines with the dis- 
tributing points in the city, the court made answer "plainly the 
combination which has occurred would not be an illegal restraint 
under the terms of the statute if it were what is claimed for it, a 
proper terminal association acting as the impartial agent of every 
line which is under compulsion to use its instrumentalities " . . . . 
but declared that the company by its restrictive rules had shown 
that it was not an impartial agent. The Court ordered (1) the ad- 
mission of any other railway to the terminal association upon equal 
terms with other proprietary companies and the abolition of the 
unanimous consent clause. (2) The use of the facilities of the 
terminal association on fair and reasonable terms by companies 
which do not wish to become proprietors or joint owners or mem- 
bers of the association. (3) The proprietary companies must not 
be restricted or required to use only the terminal company's facili- 
ties for entering St. Louis as provided in the agreement. (4) The 
practice of billing to East St. Louis and rebilling thence to St. Louis 
must be abandoned as an unnecessary restraint of trade. (5) Ar- 
bitrary discriminatory charges must be amended. (6) Disputes 
between the terminal company, the proprietary companies and any 
other company desiring to become a user or joint owner of its 
facilities are to be submitted to the District Court. (7) If the 
parties in interest fail to provide a suitable plan for approval under 
the orders above mentioned the terminal association is to be dis- 
solved into its three original companies — the Wiggins Ferry Com- 
pany, the Merchants Bridge Company and the original Terminal 
Company. Tins decision is of much importance because it marks a 
urther step towards the "reasonable" interpretation oi the Sher- 
nan Act and shows the willingness of the court to allow an advant- 
ageous combination to stand, providing its oppressive and dis- 
criminatory features are eliminated. It also shows (what has 
iometimes seemed doubtful) that the court intends to enforce the 
sxact purpose of the Act as originally understood. 
The Labor Boycott.— A new and difficult question arose in 190S— 



150 THE NEW AMERICAN GOVERNMENT 

does the law apply to an interstate labor boycott? A labor boycott 
is an agreement by laborers and their sympathizers to refuse to 
buy goods from, or to trade with another party, usually an em- 
ployer. The law has been invoked in two celebrated labor disputes 
of national scope; the case of the Danbury hatters and that of 
the Bucks Stove and Range Company of St. Louis. In the former 
case the United Hatters of North America were attempting to 
force the fur felt hat manufacturers of the country to employ only 
union labor. Extensive and costly conflicts had been waged by the 
union against those manufacturers who refused the demand. The 
Loewe Company of Danbury, Conn., had established union condi- 
tions of pay and hours in its shop, but would not grant the demand 
to employ only union members and discharge the non-union men. 
Thereupon a strike was called in the company's shops in Danbury, 
and a boycott established which gradually expanded under the 
direction of the United Hatters and with the assistance of the 
American Federation of Labor until it finally reached national 
proportions. The Loewe Company proved over $70,000 of loss 
to its interstate trade and sued the members of the union for dam- 
ages under the Sherman Act. The Federal courts declared that the 
act did apply to such cases and awarded damages to the company. 
In the Bucks Stove Company a dispute had arisen as to the hours 
of labor and after repeated efforts by both sides to settle the con- 
troversy, hostilities were opened by the declaration of a strike and 
boycott of Bucks stoves. This movement was started by the local 
union of metal polishers and buffers; it was taken up by the na- 
tional union and aided by the American Federation of Labor. It 
soon reached such an extensive scale that the company suffered 
heavy losses. Instead of asking for damages, however, it was de- 
cided to apply for an injunction preventing the further continuance 
of the boycott as a violation of the Sherman Act. The court granted 
this injunction on the ground that the boycott was a restraint of 
trade between the States. These two decisions Loewe v. Lawlor, 
208 U. S. 274, 1908 and Bucks Stove and Range Company v. 
Gompers, et al., 221 U. S. 418, 191 1, established the principle that 
the Sherman Act applied to combinations of labor as well as of 
capital formed for the purpose of restraining trade between the 
States. The labor unions at once brought to bear upon the two 
major political parties a strong influence to have the law amended 
so that it would not apply to boycotts. This attempt succeeded 
in 1 9 14, when an amendment was attached to the Clayton Act 
legalizing the boycott. Section 20 of this Act provides that no 
injunction or restraining order shall prohibit any person or persons, 
whether singly or in concert, from striking or persuading others 
to do so, in a dispute concerning the terms or conditions of employ- 
ment, "or from ceasing to patronize or to employ any party to such 
a dispute, or from recommending, advising or persuading others by 
peaceful and lawful means so to do; . . . nor shall any of the acts 



THE POWERS OF CONGRESS 151 

specified in this paragraph be considered or held to be violations 
of any law of the United States." 

The effect of this section is to legalize the boycott of employers 
in any labor dispute affecting interstate commerce, so far as the 
Federal laws are concerned. Former President Taft in his Address 
to the American Bar Association, 19 14, pointed out that the opening 
words of Section 20 of the Clayton Act applied to cases "between 
employers and employees, or between employees, or between per- 
sons employed and persons seeking employment" and that ac- 
cordingly an injunction to prevent a boycott waged against out- 
siders such as other employers and dealers in no way connected with 
the dispute could legally be granted by the courts. He is therefore 
of the opinion that where employees punish other persons with a 
boycott unless these other persons will refuse to join the employees 
in their boycott, an injunction may be secured to protect such out- 
siders from injury to their property rights. 1 

Retailers versus Wholesalers. — Is an agreement between re- 
tailers to circulate a blacklist containing the names of certain ob- 
noxious wholesalers, a violation of the Sherman Act? In Eastern 
States Retail Lumber Dealers' Association v. U. S., 234 U. S. 600, 
19 14, this difficult problem was finally settled by the highest Federal 
tribunal. The defendant companies were large associations of 
lumber retailers in the middle States and New England. They had 
agreed to circulate an " official report" to their members contain- 
ing a list of names of wholesalers who had sold lumber direct to 
the customers of the retailers and thereby entered into active com- 
petition in the retail trade. This report contained, among other 
factors, the following statement: "You are reminded that it is 
because you are members of our Association and have an interest 
in common with your fellow members in the information contained 
in this statement, that they communicate it to you; and that they 
communicate to you in strictest confidence, and with the under- 
standing that you are to receive it and treat it in the same 
way. 

"The following are reported as having solicited, quoted, or as 
having sold direct to the consumers: 

(Here follows a list of the names and addresses of various whole- 
sale dealers.) 

"Members upon learning of any instance of persons soliciting, 
quoting, or selling direct to consumers, should at once report same, 
md in so doing should, if possible, supply the following information: 

"The number and initials of car. 

"The name of consumer to whom the car is consigned. 

"The initials or name of shipper. 

"The date of arrival of car. 

"The place of delivery. 

"The point of origin." 

1 See Proceedings American Bar Association, 1914. 



152 THE NEW AMERICAN GOVERNMENT 

The retailers' associations claimed a right to distribute such infor- 
mation to their members and it was admitted that the natural 
tendency of the blacklist or official report was to cause retailers 
receiving such reports to withhold patronage from the concerns 
named on the list. Such was in fact the very object of the associa- 
tions in circulating the report. The Supreme Court held, pursuant 
to the general principles laid down in the Standard Oil case, that 
the broad, general purpose of such a combined act was to restrict 
interstate trade and to lay burdens upon the wholesalers, which 
would prevent them from entering into active competition in the 
retail business, should they choose to do so. "Here are wholesale 
dealers in large number engaged in interstate trade upon whom it is 
proposed to impose as a condition of carrying on that trade that 
they shall not sell in such manner that a local retail dealer may re- 
gard such sale as an infringement of his exclusive right to trade, 
upon pain of being reported as an unfair dealer to a large number of 
other retail dealers associated with the offended dealer, the purpose 
being to keep the wholesaler from dealing not only with the par- 
ticular dealer who reports him, but with all others of the class who 
may be informed of his delinquency. " 

The defendants had argued that they had entered into no agree- 
ment or conspiracy to boycott any wholesaler and that they had a 
legal right to circulate any information which they chose among 
their own members. In rejecting this plea, the Supreme Court 
went to the farthest limit yet reached in its interpretation of the 
Sherman Act. "It is elementary, however, that conspiracies are 
seldom capable of proof by direct testimony, and may be inferred 
from the things actually done; and when, in this case, by concerted 
action the names of wholesalers who were reported as having made 
sales to consumers were periodically reported to the other members 
of the associations, the conspiracy to accomplish that which was the 
natural consequence of such action may be readily inferred. 

"The circulation of these reports not only tends to directly re- 
strain the freedom of commerce by preventing the listed dealers 
from entering into competition with retailers, as was held by the 
District Court, but it directly tends to prevent other retailers who 
have no personal grievance against him, and with whom he might 
trade, from so doing, they being deterred solely because of the in- 
fluence of the report circulated among the members of the associa- 
tion. In other words, the trade of the wholesaler with strangers 
was directly affected, not because of any supposed wrong which 
he had done to them, but because of the grievance of a member of 
one of the associations, who had reported a wrong to himself, which 
grievance, when brought to the attention of others, it was hoped 
would deter them from dealing with the offending party. This 
practice takes the case out of those normal and usual agreements 
in aid of trade and commerce which may be found not to be within 
the Act, and puts it within the prohibited class of undue and un< 



THE POWERS OF CONGRESS 1 53 

reasonable restraints, such as was the particular subject of condem- 
nation in Loewe v. Lawlor, 208 U. S. 274, 300. 

"The argument that the course pursued is necessary to the pro- 
tection of the retail trade and promotive of the public welfare in 
providing retail facilities is answered by the fact that Congress, 
with the right to control the field of interstate commerce, has so 
legislated as to prevent resort to practices which unduly restrain 
competition or unduly obstruct the free flow of such commerce, 
and private choice of means must yield to the national authority 
thus exerted." This decision renders illegal not only an agreement 
among dealers to boycott wholesalers who attempt to sell direct 
to consumers; it also forbids even the circulation of information 
which may be used in such a boycott where there is no express 
agreement to conduct the boycott itself, but where in the eye of the 
court the apparent purpose was to withhold trade from the firms 
named in the circulated list. 

The Corner in Staple Products. — Is a "corner" a violation of 
the Sherman Act? This seventh problem goes to the root of the 
protection which the law offers to the consumer. A "corner" may 
be generally defined as the purchase of a large supply of a product 
with the purpose of withholding it from trade and thereby artifi- 
cially manipulating the price. In 1910 James A. Patten and others 
were alleged by the government to have started a corner in cotton, 
and indictments under the criminal section of the Act were brought 
against them, charging them with restraint of interstate trade. It 
was claimed that cotton was chiefly grown in the Southern States, 
largely used in the North and marketed largely by sales on the 
New York cotton exchange, in which the dealings were so large 
as to determine the price for most of the country; further, that 
Patten's corner by withholding cotton from the manufacturers of 
the North would greatly enhance the price of the commodity and 
had already interfered with its purchase for such manufacture. 
Patten's attorney objected, by a "demurrer," that the acts charged 
against him, even if proven, were not a violation of the Sherman law. 
He contended that the purchase and sale of cotton was a local 
transaction in each State where it was made, and that it was not 
subject to Federal regulation and that Patten and his colleagues 
could buy as much of any product as they pleased without violating 
the law. This claim came before the Supreme Court in U. S. ; . 
James A. Patten et al., 226 U. S. 525; 1913. The important ques- 
tion was decided in favor of the government on all points. The 
court held that the widespread purchase of an article for the pur- 
pose of withdrawing it from trade in order artificially to increas 
price was precisely one of those restraints of trade which the Sher- 
man law was intended to prevent. It was unthinkable that a 
speculator could corner the cotton market without immediately 
restricting trade between the States, whether his purchases were 
made in one State 01 several. In i he words of J ustice Van DevantCT, 



154 THE NEW AMERICAN GOVERNMENT 

who rendered the decision: "It well may be that running a cornet 
tends for a time to stimulate competition; but this does not prevent 
it from being a forbidden restraint, for it also operates to thwart the 
usual operation of the laws of supply and demand, to withdraw the 
commodity from the normal current of trade, to enhance the price 
artificially, to hamper users and consumers in satisfying their 
needs, and to produce practically the same evils as does the suppres- 
sion of competition." The court accordingly upheld the indictment 
and without proceeding to further trial the defendant paid a fine. 
This decision has effectually put a stop to attempts to corner the 
interstate market in necessaries of life. 

Patents and the Sherman Act. — The eighth problem in our series 
has presented unusual difficulty and cannot even yet be considered 
as satisfactorily solved. The Constitution in Article I, Section 8 
gives Congress the power "To promote the progress of science and 
useful arts, by securing for limited times to authors and inventors 
the exclusive right to their respective writings and discoveries." 
Under this authority Congress has conferred by the patent and 
copyright laws, an exclusive right upon authors and inventors to 
their respective writings and discoveries. At this point the diffi- 
culty in interpreting the Sherman Act arises. What is the relation 
of the "exclusive right" given by the patent laws to the monopoly 
forbidden by the Sherman Act? Has Congress granted to the in- 
ventor a right which will enable him to sell his product in interstate 
trade under such terms as he pleases? Can he make agreements with 
wholesale and retail stores binding them in turn to sell only on his 
terms? Can he fix not only the price at which he sells but also the 
price at which the wholesaler and retailer will market the product? 
Can he use his patent monopoly right to establish a monopoly in 
other articles not patented? Can the manufacturer who produces 
an unpatented article by a secret formula or process, attempt to 
control its retail sale price? Can a publisher dictate terms of retail 
sale to a retailer? All these and similar practical questions are now 
coming before the courts for settlement under the Sherman Act and 
they touch on some of the most widely used practices in manufac- 
ture and merchandising. One of the first cases in this field was 
that of the electric lamp combine. It was claimed by the govern- 
ment that several electric manufacturing companies had agreed 
to secure a monopoly of ordinary carbon electric lamps through 
their control of the patents for tungsten lamps. The latter were a 
superior grade in great demand and the members of the combine 
agreed to sell such tungsten lamps only to purchasers who con- 
sented to buy also all their supplies of ordinary carbon lamps from 
the combine. 

This restrictive clause — "you must buy everything or nothing 
from us" — is one of the most generally used means of forcing small 
dealers to take up exclusive relations with a trust and to drop the 
products of independent manufacturers. It was slowly coming 



THE POWERS OF CONGRESS 1 55 

under the ban of the courts when in 19 14 the Clayton Act, Section 3, 
made it illegal. In this case it was re-enforced by the patent right 
on the tungsten lamp, and the combine claimed that this patent was 
in itself a permissible monopoly, and enabled the patent owner to 
sell or refuse to sell his product under such terms as he pleased. 
The government contended that no matter what the patentee's 
right over his own product might be, he could not use it to establish 
an exclusive right or monopoly over a different and entirely separate 
article in no way connected with his own product or patent. This 
case never reached the Supreme Court, as counsel for the General 
Electric Company agreed to a court decree on October 2d, 191 1, 
perpetually enjoining the members from continuing the combina- 
tion. 

The Rotary Mimeograph Case. — A different form of the same 
question came before the Supreme Court in the case of Henry v. 
Dick, 224 U. S. 1, decided 191 2. Here the owner of the patent was 
allowed to make use of his patent right to control the sale of other 
articles not patented. The A. B. Dick Company controlled the 
Edison patents covering a certain form of rotary mimeograph, and 
were accustomed to sell these mimeographing machines with a 
restrictive clause in the sales agreement, providing that the buyer 
must use on the machine only certain stencil paper and inks sold 
by the A. B. Dick Company. Miss Christina Skou purchased a 
mimeograph from the agents of the Dick Company under this 
agreement, but afterward bought from Henry some other ink which 
she used on the machine. The Dick Company claimed that 
Miss Skou and Henry had thereby violated the Dick Company's 
patent rights. The ink so purchased was not covered by the 
mimeograph patent but the company claimed that it had a right to 
limit the use of its mimeograph to those persons who also used the 
ink which it prescribed. This claim was sustained by the Supreme 
Court, which declared that a patent was expressly intended to be a 
monopoly or exclusive right by both the Constitution and the 
patent laws, and this included the legal right to sell the patented 
articles under any conditions or terms which the owner of the 
patent chose. He could, for example, prescribe that it should be 
used only with certain materials of his own manufacture or under 
his own control. The effect of this decision was to enable t he owners 
of patents to evade the Sherman law by the simple means of stipu- 
lating that their patented articles may only be purchased by persons 
who also buy from them and use in connection with the patented ar- 
ticle certain other unpatented materials. By such a plan they at once 
secure a monopoly not only o( the patented products but oi all the 
unpatented supplies and other material which they specify in their 
sales contracts. In this way it would be comparatively easy tor a 
company owning a new patent which might greatly simplify the 
process of manufacturing clothing, to sell its machines only to 
clothing manufacturers who agree to buy their buttons, braid and 



156 THE NEW AMERICAN GOVERNMENT 

cloth from the company. The whole clothing industry would 
thereby be placed at its mercy and a monopoly in violation of the 
spirit of the Sherman Act would be built up under the protection of 
the patent laws. The decision in Henry v. Dick was rendered by a 
vote of four to three of the justices, there being two vacancies on the 
Bench at the time. It was at once proposed that Congress remedy 
the effects of the decision by legislation to prevent the patent laws 
from being used as a means to build up an artificial monopoly in 
unpatented articles. This has now been done in the Clayton Act, 
which is described in a later section. 

The Sanatogen Case. — Meanwhile the two vacancies in the 
Supreme Court were filled and a new patent case came up for final 
decision in Bauer & Co. v. O'Donnell, 229 U. S. 1; 1913. The ques- 
tion here was whether the owner of a patent medicine could, by 
agreement with retail dealers, fix the retail price at which his medi- 
cine was to be sold to the public. The Bauer Co. controlled a patent 
medicine known as "Sanatogen." Each bottle of the remedy was 
furnished to retailers with a notice in which the following words 
were contained: 

"Notice to the Retailer 

"This size package of Sanatogen is licensed by us for sale and 
use at a price not less than one dollar ($1). Any sale in violation of 
this condition or use when so sold, will constitute an infringement 
of our patent No. 601,995, under which Sanatogen is manufactured, 
and all persons so selling or using packages or contents will be liable 
to injunction and damages. 

"A purchase is an acceptance of this condition. All rights revert 
to the undersigned in event of violation. 

" The Bauer Chemical Company." 

O'Donnell was a retail druggist in Washington. He purchased 
of the Bauer Company packages of the Sanatogen, bearing the 
above notice, and sold them at less than $1 per bottle. Since he 
persisted in this practice, the Bauer Co. refused to sell him further 
supplies, whereupon he purchased quantities from the local jobbers. 
The question presented to the Court was: Did O'Donneli's act in 
retailing at less than the price fixed in the notice constitute an in- 
fringement of the Bauer Co.'s patent? Under the Henry v. Dick 
decision the company would apparently have been entitled to 
recover damages from O'Donnell: but the Supreme Court, in de- 
ciding in O'Donneli's favor and denying the Bauer Co. any damages 
under its patent rights, declared that the Company was actually 
transferring the right of ownership of its product, while still at- 
tempting to reserve the right to fix the price at which the same 
product should be subsequently resold. The Court reasoned that 
neither O'Donnell nor the jobbers from whom he purchased were 
the agents of the Bauer Co.; they had the indisputable right to 
sell the article purchased without accounting to the Bauer Co. in 
any way and without making any further payment than had al- 



THE POWERS OF CONGRESS 1 57 

ready been made in purchasing the medicine. In both the patent 
and copyright acts, said the Court, "it was the intention of Con- 
gress to secure an exclusive right to sell, and there is no grant of a 
privilege to keep up prices and prevent competition by notices 
restricting the price at which the article may be resold. The right 
to vend conferred by the patent law has been exercised, and the 
added restriction is beyond the protection and purpose of the Act. 
This being so, the case is brought within that line of cases in which 
this Court from the beginning has held that a patentee who has 
parted with a patented machine by passing title to a purchaser has 
placed the article beyond the limits of the monopoly secured by 
the patent act." Accordingly O'Donnell was held to have acted 
entirely within his rights in buying and selling the product at such 
a price as he chose; the patent rights of the Bauer Co. did not in- 
clude the right to fix the retail sales price of their product, when 
sold by independent drug dealers. In this decision the four justices 
who had formed the majority of the Court in the Henry v. Dick 
case all voted in favor of the right to fix prices, but were overruled 
by the three justices who had been in the minority in the Henry v. 
Dick decision, plus the two new members of the Court, the vote 
being 5 to 4. 

The Publishers' Case. — The Sanatogen decision was followed 
later in the same year by a similar ruling on price protection of 
copyrighted books, in Straus and Straus v. The American Pub- 
lishers Association and the American Book Sellers Association, 
decided December 1, 19 13. Here the publishers' and booksellers' 
associations had agreed to refuse a supply of copyrighted books to 
any retailers who sold below the standard price. Straus and Straus, 
trading as R. H. Macy & Co., a department store in New York 
City, persisted in the cut-price policy and were placed on what was 
known as the "cut off list," a printed leaflet issued by the associa- 
tions containing the names of retailers to whom supplies would be 
refused. The Straus firm claimed that in consequence of the cir- 
culation of these lists, it had been unable to obtain its customary 
amounts of books and thereby suffered greatly in its book depart- 
ment. The publishers relied for their defence upon their copyright, 
which gave them the exclusive control over their books and allowed 
them to sell under such conditions as they chose. This defence was 
not recognized by the Court, which held, under the same principle 
as in the Sanatogen decision, that a copyright gave the publishers 
and booksellers no control over the book after they had sold it to 
the retailer; that the latter, having once purchased it, could resell 
it at such price as he pleased; and that the Sherman Act was de- 
signed to secure to the public the benefits of competition between 
the retail stores. An agreement among publishers to refuse to sell 
to persons who resold the books below the fixed price was accord- 
ingly a violation of the law. 

Unpatented Articles. — The problem of price-fixing without the 



158 THE NEW AMERICAN GOVERNMENT 

element of patent rights was presented to the Supreme Court in 
Miles Co. v. Park Drug Co., 220 U. S. 373; 1911. The Miles Medi- 
cal Company manufactured a number of so-called remedies under 
a secret formula. It sought to protect the wholesale and retail 
prices of these remedies by two series of contracts with wholesalers 
and retailers, each of which fixed the wholesale and retail price 
respectively and prevented outside dealers from securing the medi- 
cines and selling them at a cut price. The Miles Company argued 
that these contracts made the wholesaler and retailer its employes 
or agents, subject to its instructions as to price and other terms of 
sale, and that the dealers entering into the agreement were bound 
by it. The Park Company, an outside dealer, had succeeded in 
obtaining goods by inducing one of the other wholesalers to violate 
his agreement; it was sued by the Miles Medical Company for 
damages for having induced the wholesaler in question to violate 
his contract. The Supreme Court declared that the Miles Company 
could not recover damages since the contract which had been vio- 
lated was itself forbidden by the Sherman Act and was therefore 
illegal. The Court explains that any producer might control the 
manufacture of his product by a secret formula but having once 
sold the product he could not, under the Sherman Act, make an 
agreement with dealers fixing the price at which it should be sold 
to other persons, since such an agreement would prevent all com- 
petition in the sale of the article. "The public," declared the Court, 
"is entitled to the benefit of competition between wholesalers and 
retailers. Such competition may not be destroyed by agreement 
even if the agreement is made by the manufacturers of the product 
itself." The importance of this sweeping decision may only be 
realized when we grasp the magnitude of the practice of "price 
protection." Nearly every widely advertised article is now sold 
under some price protecting system or agreement. The Miles 
Medical Co. alone had 400 such agreements with wholesalers, and 
25,000 agreements with retailers. In the future both jobber and 
retail merchant must be left free to market their wares under such 
prices as they choose. A glance at the above cases shows that they 
all refer to attempts made by the manufacturer to restrain or con- 
trol the action of dealers or other persons who have bought their 
stocks of goods from him. In the Henry v. Dick case the Dick 
Company seeks to control the use of material with its machine 
after the machine has been sold, in the Sanatogen and Book cases 
the manufacturer, publisher and wholesaler attempt to fix the price 
at which the retailer shall sell after he has purchased the goods. 
It will be clear, however, that these rulings do not cover the sale of 
goods directly by the owner through his own agents and his branch 
houses. If a large manufacturer were to establish throughout the 
country a number of agencies, supplying these agencies with his 
product and not parting with the ownership of that product but 
consigning it to the agents to be sold for his account, he could 



THE POWERS OF CONGRESS 1 59 

it appears, under the Sherman Act, fix the price at which every 
sale could be made in each of these agencies, since the goods are his 
own property. The law forbids only an agreement among various 
persons to maintain price, not the instructions by the owner to sell 
at a given price. 

Price Protection. — Supposedly the public derives great benefit 
from an absolutely free competition between dealers, and the more 
the dealers are encouraged to cut prices, the greater the supposed 
benefit. We are just beginning to suspect that this reasoning is 
seriously mistaken. Price cutting is usually practiced by a very 
few shops, and these are mostly department and tobacco stores; — 
the management announces that on a certain day it will sell as a 
" leader" a certain widely advertised standard article at a cut price, 
each buyer is allowed to purchase only a small amount of the 
goods, and the total sales of the product are not allowed to go above 
a certain quantity each day, in order to limit any possible loss on 
the " leader." The manager in this way attracts many new cus- 
tomers who buy other goods at ordinary prices. But the trade in 
the leader at all other stores is at least temporarily destroyed and 
the other dealers finding this to be so, cancel their orders from the 
manufacturer. When finally the price-cutting store shifts to an- 
other "leader" the first product is practically out of the market 
and its manufacturer must pocket a heavy loss. The public has 
gained the impression that the regular price of his article is too 
high. Let us examine briefly both the producer's and the con- 
sumer's side of this regulative question. 

We must remember that the large manufacturer has changed his 
methods radically in the last two decades. He is now guaranteeing 
both the quality and the quantity of his goods, and is putting forth 
special efforts to create a permanent clientele by satisfying the 
purchaser in every detail. The very fact that he spends a fortune 
every year in advertising his brands makes it necessary for him to 
hold his customers. He no longer aims to take advantage of the 
trade by marketing a large quantity of doubtful goods to a tem- 
porary circle of buyers, but seeks rather to form permanent con- 
nections, a permanent trade name, and a thoroughly satisfactory 
standard of quality and service. This means that he takes the 
entire responsibility for his goods — in order to do this, he must fix 
a standard price which will allow a reasonable profit to the retail 
trade. The price cutter destroys this system, disrupts the perma- 
nent foundations of the manufacturer's relations with the retail 
trade, and undermines the public confidence in the manufacturer's 
fairness. If the department store could permanently sell goods at 
the lower price, there could be no valid objection, but it does not. 
The sole aim is to lure buyers by the offer of a new bargain each 
week. It would seem a mistaken public policy to protect by law 
the momentary bargain sale rather than the efforts oi years to 
build up a permanent trade by sound and fair principles of uniform 



l6o THE NEW AMERICAN GOVERNMENT 

quality, quantity and price. Rather should price protection be 
legalized in those cases where a moderate and fair price is fixed. 1 
The Sanatogen decision is a clear and authoritative statement of 
the patent law ; but it raises the question, how can beneficial 
and just price-fixing agreements be distinguished from those which 
are improper and extortionate? Shall both alike be put under the 
ban of the law, to the loss of the producer, the public, and the small 
store-keeper, or shall we attempt to separate the wheat from the 
chaff? Clearly the latter policy is necessary and it is this need that 
has led to the suggestion of a national commission to examine and 
approve or forbid price-fixing agreements in interstate business. 

Practical Results of the Sherman Act. — From our examination of 
the Sherman Act we may now draw the following conclusions as 
to its practical effects upon business and as to the changes which 
should be made in the law itself: 

First, the Act has been very properly applied to many combines 
which were guilty of predatory, destructive, and immoral practices. 
It has been a sound policy and has exerted a healthy influence to 
discourage business piracy. No matter how great its size, no com- 
bine should be allowed by law to destroy its competitors systemat- 
ically by unscrupulous and unfair means. The leading commercial 
nations of the world refuse to tolerate such practices. In England, 
both statute and common law forbid them; in Germany also the 
imperial acts relative to "unlauteren Wettbewerb" prohibit the 
various forms of trade piracy. 

Second, the act has also been applied to many combines because 

1 The need for some revision of legal rules which now forbid even reasonable 
price protection in standard goods has led to the formation of the American 
Fair Trade League with offices in New York. This society is supporting a 
measure known as the "Stevens Bill," the main provisions of which are as 
follows: — manufacturers and producers of trade- marked or specially branded 
goods circulating in interstate trade may contract with wholesale and retail 
dealers to fix a uniform price for the resale of their products provided : 

(a) that the producer has not a monopoly or control of the market for articles 
of a similar class of merchandise and has not any agreement or combination 
with any competitor for the fixing of the prices of articles in the same class; 
provided also 

(b) that the producer shall label the resale price on each article or package; 
such articles may then not be resold except at the price marked; and provided 

(c) that the producer files in the U. S. Trade Commission a statement setting 
forth his trade-mark or special brand and the schedule of prices fixed by agree- 
ment with wholesalers and retailers; there shall be no discrimination in prices to 
dealers nor any special concession, allowance, rebate or special commission in 
favor of one dealer as against others; provided further 

(d) that the dealers buying such goods from the producer may sell them at 
prices other than those marked in case the dealers retire from business or become 
bankrupt or the goods become damaged, but only after the dealer has offered the 
goods to the producer at the price originally paid for them. 

It is expected that such a measure, if passed, would protect the manufacturer 
against bargain sale abuses and would encourage and safeguard the present 
system of uniform quality, quantity and prices, and in this, way directly benefit 
the consumer. 



THE POWERS OF CONGRESS l6l 

they were combines or because of their size. Yet many of these have 
been based upon the soundest economic principles, such as intro- 
duction of uniform processes, reduction of waste, use of scientific 
methods, immediate adoption of new inventions, enforcement of 
greater steadiness in prices, etc. Such agreements tend to stand- 
ardize an industry, to render it often both more efficient and more 
stable in its costs and prices. Here the Sherman Act should never 
have been applied; its chief purpose should be to prevent, not the 
growth of large concerns nor the unification of industries, but 
rather the illicit destruction of competitors. For example, the 
agreements for price fixing attempted in both the Sanatogen and 
the Miles Medical Co. cases were, in the main, for a proper purpose; 
viz., to fix the retail sales price of then products at a reasonable 
figure. On the other hand, the effort to attach onerous and burden- 
come restrictions in licensing and selling a patented article to the 
public was upheld in the Henry v. Dick case, although the words of 
Chief Justice White, who voted with the dissenting minority, would 
seem unanswerable. In pointing out the harmful possibilities 
which the decision entailed upon business, the Chief Justice said: 
"Take a patentee selling a patented engine. He will now have the 
right by contract to bring under the patent laws all contracts for 
coal or electrical energy used to afford power to work the machine, 
or even the lubricants employed in its operation. Take a patented 
carpenter's plane. The power now exists in the patentee by con- 
tract to validly confine a carpenter purchasing one of the planes to 
the use of lumber sawed from trees grown on the land of a par- 
ticular person, or sawed by a particular mill. Take a patented 
cooking utensil. The power is now recognized in the patentee to 
bind by contract one who buys the utensil to use in connection with 
it no other food supply but that sold or made by the patentee. Take 
the invention of a patented window frame. It is now the law that 
the seller of the frame may stipulate that no other material shall 
be used in a house in which the window frames are placed except 
such as may be bought from the patentee and seller of the frame. 
Take an illustration which goes home to everyone, — a patented 
sewing machine. It is now established that, by putting on the 
machine, in addition to the notice of patent required by law, a 
notice called a license restriction, the right is acquired, as against 
the whole world, to control the purchase by users of the machine, oi 
thread, needles, and oil lubricants or other materials convenient or 
necessary for the operation of the machine." It was this possibility 
that led to the later passage of remedial legislation in the Clayton 
Act. 1 

Third, the act should not apply to railways, because these are 
already amply regulated by the Commission under the Interstate 
Commerce law. In its power to fix reasonable rates and service, 
the Commission is well fortified with sufficient authority to prevent 

1 Sec the discussion of this law in the following chapter. 



1 62 THE NEW AMERICAN GOVERNMENT 

agreements of an extortionate nature between the carriers. This 
being so, why should we further burden the transport business with 
a clumsy prohibition against agreements in restraint of trade and 
interpret this prohibition to mean an agreement to fix freight rates? 
Such agreements would in no wise injure shippers' interests so 
long as the Commerce Commission enjoys its present powers. For 
example, the Northern Securities Company held the stocks of two 
competing railways, it is true, but this was no reason for its dissolu- 
tion, since no destructive restraint of trade was proven against it 
and such restraint could at any time have been prevented under 
the rulings of the Commission. The Trans-Missouri Freight 
Association was held to violate the letter of the law, yet its purpose 
was a conservative and most beneficial one; to-day no business man 
or publicist advocates universal railway competition in freight 
rates. For the protection of both railway and shipper, the full 
control over their relations should be left to the Commission, un- 
hampered by the Sherman Act. 

Fourth, from the above, it is clear that the Sherman law should 
be applied to combines not because of their size, nor because of 
their purchase of competitors, nor because they are combines, but 
solely by reason of their effects upon business. If a combination is 
beneficial, it should be allowed to stand; if it is destructive or 
extortionate, it should be suppressed. To this end we need some 
device that will sift out those which, regardless of their size or 
form, are conducted upon fair, equitable, and efficient principles, 
from those which are practicing illicit, destructive and oppressive 
methods. The most practical means yet suggested for doing this 
is a Federal Trade Commission, with a jurisdiction over the com- 
mercial and trading companies corresponding roughly to that of the 
Interstate Commission over the railways. This proposal, at first 
greeted with strong opposition and even ridicule, made such rapid 
headway and gained so many recruits from both radical and con- 
servative classes that it ultimately led to the fourth great step in our 
national trust policy, which is described in the sections dealing with 
the trade commission. 

REFERENCES 

Federal Anti-Trust Decisions, i8go-igi2, compiled by James A. Finch, 4 vol- 
umes, Washington, Government Printing Office. 

Judson: Interstate Commerce. 

Barnes and Milner: Selected Cases. 

Ely: Monopolies and Trusts. 

Stevens: Industrial Combinations and Trusts. 

Ripley: Trusts, Pools and Combinations. 

The Annals, Volume 42, July, 191 2, "Industrial Competition and Combina- 
tion." 

QUESTIONS 

1. What was the purpose of the Sherman law? What kinds of contracts 
and agreements does it forbid? 

2. Explain its provisions as to monopolies. 



THE POWERS OF CONGRESS 1 63 

3. Show the various criminal, civil and equitable suits which may be pros- 
ecuted when the Sherman law is violated. 

4. What is the extent of damages which may be granted to injured parties, 
under the Act? 

5. Does the Sherman Act apply to a combination of competing railways to 
fix freight rates? 

6. Would it apply to such 1 combination if it could be proven that rate 
agreements between the railways were beneficial to the community? 

7. Does the Act apply to combinations limited to the manufacturing busi- 
ness? 

8. The Delaware, New Jersey and Pennsylvania farmers, engaged in peach 
culture, form a peach growers' association. They buy all the available trees 
in the three States. The government prosecutes them under the Sherman Act 
and proves their ownership of the peach trees. Is this sufficient? 

9. The representatives of railways prosecuted under the Sherman Act for 
an alleged violation, make answer that it was not the purpose of Congress to 
repeal the interstate commerce law of 1887 by the Sherman Act of 1890, that 
the railway business is peculiar and different from other lines of industry, and 
that Congress intended to regulate trusts not railways by the act of 1890. Is 
this defence valid? Reasons in full. 

10. If the government proved simply a monopoly of the ownership of mines 
in several States would this ownership be illegal under the Act? 

11. A, B, and C manufacture umbrella parts. X and Y buy the parts from 
them and manufacture umbrellas. Because of competition between A, B and C 
the price fluctuates so that X and Y are never able to foretell what it will cost 
them to make an umbrella. X and Y for their own protection as customers, 
persuade A, B and C to fix a scale of prices by agreement. The attorney gen- 
eral prosecutes A, B and C for violation of the Sherman Act. They answer that 
the agreement was formed for the protection of their customers and at their 
customers' suggestion; it is therefore not in restraint of trade in the sense of 
the Sherman Act. Decision with reasons. 

12. The village of "X" advertised for bids for road material. The cracked 
stone contractors of the entire State agree to allow one of their number to bid 
low, and the other to bid high. The favored one is to divide his profits with the 
others. Are they subject to prosecution under the Sherman Act? Reasons in full. 

13. A suburban trolley line is formed to run from Philadelphia to Trenton. 
After the road is constructed a second line is built to compete with it but as 
there is not sufficient business to maintain both concerns, the older company 
purchases the second line. Has the Sherman Act been violated? Explain fully 
with precedent and reasons. 

14. The managers of three large manufacturing and selling companies of 
national scope meet at lunch daily, and talk over prices. At the conclusion of 
the luncheon they settle upon a price below which they will not sell their product 
in competition with each other, but they do not make a written contract to 
that effect. Is this a violation of the Sherman Act? Reasons. 

15. On the Board of Trade at D large quantities of grain from various 
States are sold. The members of the Board who are grain brokers, pass a resolu- 
tion providing that the regular brokers' commission on each sale shall be l/io% 
of the amount of the sale. Does the Act apply? Precedent. 

16. Does the Sherman Art apply lo a combination of manufacturers and 
wholesalers, agreeing to a list of higher prices to be charged all wholesalers 
outside the combination? Reasons. 

17. Would it affect a company formed to buy and hold the securities o\ two 
competing interstate railway companies? Why? Precedent Explain what is 
meant, by potential restraint of trade. 

18. To a company Owning the stock o\ several competitive manufacturing 

and I fading concerns located throughout the United States? Explain. 

10. To a series of manufacturing and trading companies each of which own 

some of the others' stock, th-^ivlu v oi all the companies being determined by the 

same persons? Reasons. 



1 64 THE NEW AMERICAN GOVERNMENT 

20. Does it forbid you and your friends to form a syndicate which shall buy 
all the available wheat in the country through the Chicago Exchange and hold it 
until it has doubled in price? Reasons and precedent. 

21. Does the Sherman Act prevent you from using your patent right to sell 
or refuse to sell to whom you please, the article which you have patented? Why? 

22. The Doe Manufacturing Company has a typewriter patent. It sells 
each machine with a "license restriction" providing that the paper and ink used 
on the machine may only be those supplied by the Doe Company and providing 
further that all machines are sold subject to this agreement. Does the Sherman 
Act prohibit such a clause? Reasons. Cite an authority. 

23. The Magical Medical Company sells a patent medicine to retailers with 
the written agreement that retailers will not sell the remedy to the public at less 
than $1.00 per bottle. The purpose of the agreement is to prevent cut-price 
druggists from making temporary bargain sales of the remedy in sac 11 a way as 
to interfere with its permanent sale at standard prices by other druggists. Is 
the agreement binding under the Sherman Act? Reasons and precedent. 

24. In the above case would the decision have been different if the remedy 
had been unpatented, but simply manufactured by a secret process? 

25. Explain the difference between the rulings in the mimeograph and 
Sanatogen cases, — Henry v. Dick and The Bauer Chemical Company v. O'Don- 
nell. 

26. A department store cuts prices on music. Other music stores complain 
to the music publishers and the publishers' association agrees not to furnish 
music to any store which sells below a certain standard price. Can the depart- 
ment store recover damages under the Sherman Act? Reasons and precedent. 

27. Why is such a strong effort being put forth by manufacturers to change 
the laws so as to permit price protection? What are your impressions of the 
arguments presented on both sides of the question? 

28. Prepare an essay on Price Protection and The Sherman Act showing the 
methods, the advantages and disadvantages of price protection and outlining 
the proposals for a proper legal regulation of the problem. 

29. Resolved that the Sherman Act has been partly successful. Defend 
either side of this question with a systematically arranged argument and cases 
illustrating the argument. 

30. What do the cases thus far considered show to have been the least 
successful parts of the Sherman Act, or its interpretation by the courts? Exam- 
ples. 

31. What does the Sherman law provide as to the protection of a competitor 
whose business is damaged by an illegal combination? 

32. What are your views as to the completeness of this protection in prac- 
tice? Explain fully with illustrations. 

7,2- Explain how the past interpretation of the Act has led to uncertainty. 

34. Does the Sherman Act forbid combinations because of their size, or 
because of destructive restraints of trade? Cite the exact parts of the law prov- 
ing your answer. 

35. Prepare an essay on the Sherman Act showing the reasons for its 
passage, its most important features and their interpretation, and giving con- 
clusions as to its value. 

36. What is a boycott? 

37. Did the Sherman Act originally apply to interstate boycotts carried on 
by labor unions? Cite examples. 

38. Outline and explain the changes made on this point by the Clayton Act 
of 1914. 



CHAPTER VIII 

POWERS OF CONGRESS— Continued 

PUBLICITY, THE TRADE COMMISSION AND THE 
CLAYTON ACT 

Third Period of Regulation. — We have now considered two stages 
in our policy of trust control, viz: first, the attempt to prevent the 
building up of trusts by illicit rebates and special favors and dis- 
criminations on the railways; second, the effort to demolish the 
trusts by forbidding their formation in interstate trade. Both of 
these have been partly successful, as we have seen, in suppressing 
the cruder forms of discrimination and have partly failed in the 
original purpose, which was to preserve the opportunities for 
competition wherever possible, to protect the consumer from extor- 
tion, and to secure to the investor a moderate amount of safety. 
Meanwhile, public opinion passed through the third stage in which 
the new doctrine of Publicity occupied popular attention. In 1898 
the extraordinary business boom following the Spanish War led 
to the flotation of a long list of new corporations, most of them 
grossly overcapitalized and many of them foredoomed to bank- 
ruptcy. The capital stock of these new combinations being sold 
broadcast to investors, enlisted all classes of the people in the 
ownership of the new enterprises, — when the inevitable harvest of 
bankruptcy followed, a profound and painful impression among all 
circles of the investing public was created. 

A new thought then arose in the public mind — the prime evil of 
the trust or combination was not in its unfair discrimination against 
competitors but rather in the enormous overcapitalization of its own 
stock. This attracted public attention to the methods of corporate 
promotion, largely because the original promoters of the new com- 
binations had been able to sell out their stock holdings, reap hand- 
some profits, and "step from under" before the crash came. What 
could the government do to remedy these conditions? The answer 
was, "Publicity," and as in the original campaign against the trust, 
the discriminatory freight rate had been attacked, while later the 
combination itself had been declared illegal, so now the remedy for 
corporate ills was believed to be a public statement of the facts, by 
government authority. 

The Bureau of Corporations. — Accordingly, in 1903, the Depart- 
ment of Commerce and Labor was created, the chief feature oi 
which was a Bureau oi Corporations under the direction oi a 
commissioner. The Commissioner of Corporations "shall have 

105 



1 66 THE NEW AMERICAN GOVERNMENT 

power and authority to make, under the direction and control of the 
Secretary of Commerce and Labor, diligent investigation into the 
organization, conduct, and management of the business of any 
corporation, joint stock company or corporate combination engaged 
in commerce among the several States and with foreign nations, 
excepting common carriers subject to 'An Act to regulate com- 
merce,' approved February fourth, eighteen hundred and eighty- 
seven, and to gather such information and data as will enable the 
President of the United States to make recommendations to Con- 
gress for legislation for the regulation of such commerce, and to 
report such data to the President, from time to time as he shall re- 
quire; and the information so obtained or as much thereof as the 
President may direct, shall be made public." 

The Commissioner was given power to summon witnesses, ad- 
minister oaths, and hear evidence, and compel the production of 
documentary testimony. Under these provisions the bureau was 
organized and made several important investigations of interstate 
companies, the results of which were published as government 
documents. The commissioner appointed upon his staff, experts in 
research, and the results of the bureau's work have been the produc- 
tion of complete and authoritative data on the industrial, commer- 
cial and financial management of the industries investigated. 
Among the more important of these have been the transportation of 
petroleum and its products, the steel business, the tobacco business, 
sugar refining, inland waterways, water power companies, the 
lumber industry and the marketing of cotton. All of these have 
been carried on by the bureau through its special agents who have 
examined the financial methods, the transport and sale of products, 
the relations with the railways, the agreements between producers 
and many other questions affecting the commercial side of the 
industries named. The real service rendered by the bureau in 
making these investigations is the shedding of light upon business 
conditions, that is, the official collection and statement of facts 
which may be published by the direction of the President. Some- 
times the mere knowledge that information on certain illegal 
practices has been secured by agents of the bureau was sufficient to 
cause their immediate cessation. In one case a series of important 
railway discriminations were stopped as soon as the bureau agents 
had collected the data necessary to prove them, even before the 
publication of the facts took place. This potential publicity of the 
practices arising in trade competition is one of the most effective 
methods of government regulation yet devised. The bureau, 
although it expended only a small annual appropriation, was 
successful in bringing about noteworthy and beneficent changes. 
It proved beyond question the wisdom of this third step in our 
regulative policy. With the added impetus which the publicity 
movement gained from the law of 1903 it soon became a fixed 
practice among industrial companies to issue annual or quarterly 



THE POWERS OF CONGRESS 167 

statements of their business. In the short period from 1903 to 1910 
a complete revolution in the publicity methods of all the great 
producing companies was brought about. The concern which 
practices secrecy of its accounts is now the exception rather than the 
rule. The personnel, powers and authority of the bureau of corpo- 
rations have been taken over by the new trade commission under the 
Act of 1914. 

The Corporation Tax. — Under the Act of 1903 many companies 
could not be included in reports of the bureau of corporations 
because they were not interstate concerns and were therefore 
beyond the jurisdiction of Congress. To remedy this President 
Taft incorporated in the Tariff Act of 1909 the provision for a 
corporation tax. This levy is imposed according to the net income 
of each company, as we have already seen in the chapter on taxa- 
tion. Section 38 of the law provides that all corporations should 
make a report to the collector of internal revenue showing their 
gross and net earnings, and certain other items from which the 
collector is to make an assessment for taxation upon those which 
have a net income of $5,000 or over. By this means it was planned 
to secure information as to the actual financial status of all the 
corporations of the country, regardless of whether they were 
engaged in interstate commerce or not. While it was the purpose of 
the law to make these reports public records, no appropriation to 
render them available for public inspection was ever made, and as a 
result they are only public to the extent that the President wishes to 
make them so. While neither the bureau of corporations nor the 
corporation tax has given to the investor any direct and important 
information on the conditions of a particular company whose 
stock he may consider purchasing, they have strengthened the 
general movement for publicity and have thereby indirectly 
wrought the desired result. The Corporation Tax has now been 
made a part of the general income tax under the Act of 19 13. 

General Tendencies of Corporate Regulation. — Of the three 
stages in our legislative program thus far considered, the regulation 
of rates has attracted most attention and yielded the greatest 
benefits thus far, but in the period from 1903-1910 the Publicity 
policy yielded the best results. Every great corporation in the land 
became desirous of securing public approval and co-operation. 
It wanted (a) To sell its stock to numbers of small investors in 
order that the public at large might have an active interest in the 
enterprise; (b) It must have a favorable public sentiment in order 
to market its wares most profitably; (c) The experience 01 recent 
years has taught that no corporation is strong enough to defy 
public sentiment. Such sentiment, when thoroughly aroused, 
brings on a destructive and hostile political movement which 
undermines the prosperity o\ all business undertakings; warfare 
between the government and a corporation seldom results profit- 
ably for the latter. 



1 68 THE NEW AMERICAN GOVERNMENT 

Many corporations are trying to win public confidence by vast 
and expensive forms of publicity and advertising, and various 
other means of influencing public opinion. They have engaged in a 
"campaign in the open." Secrecy of financial operations and 
juggling of accounts are slowly going out of fashion. The publica- 
tion by the government of the results of its investigations of any 
business would naturally be sufficient to influence public opinion 
in such a potent way that no corporation would willingly oppose or 
disregard the sentiment thus aroused. The shrewder managers 
have already calculated that if publicity must come, they have 
much to gain by an early and cordial adoption of the policy; the 
business tide is setting strongly toward this new ideal. Mystery, 
secrecy, and suspicious appearances are being rooted out and the 
public is being courted with an eagerness that bespeaks a new 
understanding of the relation of the people to the corporation. 
In this new movement, which has already been of inestimable value 
to all concerned, the leading role and chief credit must be assigned 
to those principles of government publicity laid down in the Federal 
laws of 1903 and 1909. 

THE FEDERAL TRADE COMMISSION 

Fourth Period: Administrative Versus Legislative Control of 
Trusts and Combinations. — In our examination of the Sherman 
Act we saw that the advocates of the national commission plan 
viewed the whole question of trusts and combinations from a new 
and different angle. They pointed out that the national Congress 
is unable to regulate this problem in all of its rapidly changing 
aspects and details. The best that Congress can do is to fix a few 
general principles. The real regulation under these principles must 
be carried out by some authority which will devote its entire time 
to this one subject. The vast difference between the new plan and 
the old method of regulation may be summed up in the following 
ideas which lie at the basis of the commission system. 

(a) Do not attempt to enforce competition where combination is 
feasible and beneficial. 

(b) Let combinations grow as much as they please within reason, 
so long as they employ no extortionate or destructive practices. 

(c) Hasten the settlement of disputes arising from the regulative 
laws, in order to secure for the business community an early settle- 
ment of the law on all important points, and thereby avoid un- 
certainty. 

(d) To these ends let the control and regulation of interstate 
commercial companies, except the common carriers, be conducted 
by a national trade commission instead of by the national legisla- 
ture and the courts as heretofore. 

The practical force of these ideas is unanswerable. It has been 
admitted on all sides that our need has not been for extensive and 



THE POWERS OF CONGRESS 1 69 

detailed legislation, but rather for some administrative machinery 
that would take the principles laid down by the lawmaker and 
apply them with impartiality, yet with elasticity, to the quickly 
changing conditions of industrial life. Congress, with its pre- 
dominantly political aims and ambitions is not a suitable body for 
this purpose. We need rather some group of men, scientifically 
trained, with expert knowledge of their field, who can secure ev- 
idence, hear it and form their conclusions accordingly, regardless of 
partisan bias or political effect. One of the great difficulties in our 
present interpretation of the law has been the uncertainty which 
many business managers feel as to whether their actions, contracts 
and agreements, and even the very existence of their corporations, 
are legal or not. The American Tobacco and Standard Oil cases 
were hastened to the utmost, yet it took five and a half years to 
reach an ultimate decision. There are other combinations in viola- 
tion of the Sherman Act which have been in litigation in the courts 
exclusively on the point of their legality under the Sherman law for 
ten years. It has been calculated that over 1,200 combinations with 
ten billions of capital have to-day either an illegal existence, or one 
of doubtful legality. We may accordingly form some notion of the 
advantage to these concerns of having an authoritative, official 
statement of their legal status and some means of bringing their 
organization into definite compliance with the law upon a profitable 
basis. This suggests another advantage of the plan, — that it is 
preventive rather than remedial. The visiting of fines and im- 
prisonments upon offenders has never been as successful in securing 
obedience to the law as has the plan of changing or removing the 
causes of offence. It is safe to say that the overwhelming pre- 
ponderance of business men in all industries, would undoubtedly 
conform to the law as a matter of course, if its provisions were 
clearly drawn and reasonable, and were made to conform with the 
easily understood principles of commercial honesty. These ad- 
vantages are undoubtedly possessed by the commission plan. 

The Need for Expert Service. — Corporation attorneys have often 
pointed out that otir courts, both Federal and State, experience 
serious difficulty in examining into all the intricate and multiform 
detail of business practices in a large corporation and in tracing 
the effects of these practices upon the business world. Such a task 
is entirely foreign to the natural jurisdiction of a court, and the 
judges, in order to perform it properly, would have to devote 
sufficient time and study to this one particular class of legal and 
economic subjects to become specialists therein. As they are not 
able to do this it may be said that the courts are unfitted for the 
work of supervising industrial combines. Yet the immense extent 
of government regulation of such corporations has created a new 
body of law, of legal and regulative principles, which does require 
the careful training and study of the specialist. What is still more 
important, the supervision must be a constant and continuing one. 



170 THE NEW AMERICAN GOVERNMENT 

it cannot be the mere registering of a court decree which shall 
determine, once for all, the questions involved. 

Let us examine the most favorable court procedure possible 
under the Sherman Act, — that illustrated by the dissolution of 
the Western Union-Bell Telephone combine. Here the Attorney 
General inspired by the desire to settle cases out of court, in order 
to avoid litigation whenever possible, was able to persuade the 
Bell system and the Western Union to separate voluntarily with- 
out legal prosecution. The Bell company agreed further not to 
purchase competitive telephone lines in the future, also to allow 
existing independent companies to connect with its lines upon 
payment of a moderate fee. But even when a court decree provid- 
ing for these conditions is registered on the records of the Federal 
Courts, such a settlement covers only one aspect of the regulative 
problem. The Bell and Western Union companies and their 
independent competitors must still be subject to the supervision of 
the interstate commerce commission, both as to the reasonableness 
of their rates and the nature of the services to be offered. The meat 
packers combine to fix prices and practice other illegal acts for- 
bidden by the Sherman law. They are enjoined by the Federal 
courts and prohibited from further continuance of these violations, 
as we have seen in considering Swift v. U. S., 196 U. S. 307; 1905, 
yet five years later these same packers are prosecuted in a criminal 
suit in which the government alleges that they are still combining 
to manipulate meat prices. In their defence much weight is placed 
upon the vagueness and uncertainty of the anti-trust law, and they 
are acquitted, at the end of a long and expensive trial, after which 
the prices of meat products immediately rise. Why should the 
regulation of such an important industry be attempted by a few 
general terms in the Sherman Act? Can the immense interstate 
and foreign trade in meat products be adequately regulated in the 
public interest by means of a court decree or a criminal suit? It is 
not otherwise with other large interstate commercial enterprises. 
They might be willing to agree to a court order bringing them into 
general compliance with the main principles of the Sherman Act, 
but the ordinary routine of their business and their relations to 
their competitors should not be and cannot be successfully regulated 
by criminal prosecution or injunctions or any other court decrees. 
This routine and these business practices are matters of daily 
happening, changing frequently over night, and requiring for their 
proper regulation, the supervision of an administrative body with 
flexible inexpensive forms of procedure and possessing a staff of 
skilled experts or specialists who can ascertain and report on the 
business facts involved. A commission has such a staff of investi- 
gators, a court has not. A commission sits continuously and 
accumulates the precedents, maxims, and principles covering a 
given class of corporations more completely and in greater detail 
than is possible in a court. A commission in brief, would specialize 



THE POWERS OF CONGRESS 17I 

in the public regulative law of interstate commerce and would 
apply the principles of that law to the rapidly changing business 
conditions with a success that few judicial bodies could hope to 
attain. 

The Federal Trade Commission; Its Powers. — The strong con- 
siderations already explained led to such a preponderance of 
opinion that President Wilson in 1914 endorsed the plan of a 
Trade Commission, which is the fourth step in our trust policy. 
The Democratic party for many decades had opposed material 
extensions of the Federal power and was at most only mildly 
favorable to the whole Federal system of regulation, but such was 
the change in all strata of public sentiment that the President's 
plan finally won and on September 26th, 19 14, the new Federal 
Trade Commission law was approved. It provides a body of five 
members appointed by the President and Senate for seven years, 
each with a salary of $10,000. The other central feature of the 
law is the provision in Section 5 "That unfair methods of competi- 
tion in commerce 1 are hereby declared unlawful." The Commis- 
sion is directed to prevent persons, partnerships, or corporations 
from using unfair methods of competition in commerce, excepting 
banks and common carriers. Somewhat like the Commerce body 
the Trade Commission is authorized to ascertain any unfair meth- 
ods of competition, and to serve notice upon parties complained of 
that there is reason to believe that such unfair practices have been 
used. Thereupon the parties accused may appear and a formal 
hearing is held, at the end of which an order is issued by the Com- 
mission upon those concerned. This sweeping power is subject to 
review in the Federal Courts upon the appeal of any party to whom 
the order is directed. The Commission itself may also appeal to 
such courts to secure the enforcement of its orders. In order to 
expedite procedure the appeals in both cases are taken direct to a 
Circuit Court of Appeals, thereby skipping the lower or district 
courts and eliminating much delay. The Circuit Courts of Appeals 
are required to give precedence to such cases. A review of the 
court's decrees may be made by the Federal Supreme Court. Facts 
found by the Commission, if supported by testimony, are con- 
clusive, that is, they are binding upon the court. If new evidence is 
produced at the court proceedings the court suspends action and 
refers the evidence to the Commission. 

The Circuit Court of Appeals, after its hearing, issues a decree to 
enforce, set aside, or modify the orders of the Commission. Sec- 
tion 5 declares that no order of the Commission or judgment oi the 
court enforcing the order, relieves or absolves any person or corpo- 
ration from its liability under the Anti-Trust Act. That is, the 
rules and orders of the Commission do not supersede the Sherman 
Act. The new law does however provide that where the govern- 
ment is commencing a suit in equity against a corporation under 

1 Commerce is de lined in the sense of territorial, interstate and foreign trade. 



172 THE NEW AMERICAN GOVERNMENT 

the Anti-Trust Act, — that is, where the Attorney General is seeking 
an injunction to dissolve an illegal combination under the Sherman 
law, the court before which the suit is held may ask the Trade 
Commission to work out a solution of the whole problem and may 
embody the Commission's recommendations in the court decree. 

Further Powers of the Trade Commission. — The Commission 
also has power to gather, compile and publish information on the 
organization, business management, practices, etc., of any corpora- 
tion engaged in national trade (excepting banks and common 
carriers), and its relation to other corporations or individuals. 

It may require corporations so engaged to file annual and special 
reports or answers to questions under oath. 

It may on its own initiative, or on the application of the Attorney 
General, investigate and report upon the manner in which a final 
court decree under the Anti-Trust Act, has been carried out and 
obeyed. In its decision it may publish this report. 

When directed by the President or by either House of Congress, it 
investigates and reports on the facts relating to alleged violations 
of the Anti-Trust Acts. 

Upon application of the Attorney General it may investigate and 
make recommendations for the re-adjustment of the business of any 
corporation alleged to be violating the Anti-Trust Acts in order 
that such corporation may thereafter manage its business in accord- 
ance with law. This significant power has been given to the Com- 
mission because of the large number of companies that were operat- 
ing in violation of the Sherman Act who were anxious to bring 
their practices into conformity with the law. In many of these 
cases the Attorney General properly held that a reasonable adjust- 
ment or re-organization rather than a government prosecution 
would be the fairest and most equitable manner of enforcing the 
Act. The new provision just noted enables the Trade Commission 
to bend toward this object the expert service and experience which 
it may accumulate. In the records and personnel of the former 
Bureau of Corporations it possesses a valuable asset of this kind. 

The Commission is authorized to classify corporations and make 
rules and regulations for the purpose of carrying out the new Act. 
It may also investigate trade conditions with foreign countries and 
ascertain the effect which foreign associations and combinations and 
trade practices have upon our foreign business, reporting to Con- 
gress its conclusions and recommendations. The law visits with 
heavy penalty any disclosure of information obtained by the 
Commission, except such which the Commission itself shall deem 
wise to publish. The purpose of this provision is to safeguard the 
business records and accounts of corporations from improper use 
by their competitors. 

It will be noticed that the law gives to the new Commission some 
of the same general powers over commercial companies that the 
Interstate Commerce Act has given to the Commerce Commission 



THE POWERS OF CONGRESS 1 73 

over railroads. The Trade Commission is not a merely investigat- 
ing body with power to report, as was the Bureau of Corporations. 
The latter body is superseded by the Commission, and its powers 
and staff of employes have been taken over by the new authority. 
The Commission has full power not only to inquire and investigate 
but to issue orders which have all the force of law, and to provide 
rules and regulations both special and general, which shall carry 
out the great central principle on which the law is based, namely 
that unfair methods of commerce are prohibited. One of the serious 
difficulties which the new authority must face is the immense vol- 
ume of work awaiting it. Undoubtedly a Commission of five 
members may find it difficult to hear, investigate and decide 
upon the great mass of problems affecting fairness of competition 
which are constantly arising. This, however, is not a defect in the 
principle upon which the law proceeds, but is rather a proof of the 
need for more extensive machinery to carry on the amount of work 
to be done. One feature of the law is especially notable and praise- 
worthy, viz., Congress has not attempted to regulate any detail of 
the minute questions of commercial competition but has contented 
itself with fixing one fundamental principle, and has authorized 
the Commission to translate this principle into rules, regulations, 
orders and decisions in the particular cases that may come before it. 
It is precisely this elasticity and adaptability that we have seen 
were most needed in our past regulations of the trust problem. 

The Clayton Act. — The latest step in our regulative policy was 
taken in the passage of the Clayton Act, October 15th, 19 14. This 
important measure has three objects. — First: To put the injured 
party or plaintiff who is seeking redress under the anti-trust laws 
in a stronger legal position, and make it easier for him to prosecute 
his suit. Second: To define more clearly certain abuses, discrimina- 
tions, and restraints of trade, which had become common in trade 
relations, and to forbid these, or to empower the Trade Commission 
to suppress them. Third: The original bill covering these two 
purposes was supplemented by the efforts of organized labor so as 
to include a revision of the methods of granting injunctions in labor 
cases, and especially to legalize the boycott in labor disputes. 
These three separate objects were originally embodied in three 
distinct bills but in order to hasten congressional action the leaders 
in Congress decided to combine them in a single measure. 

First: The Legal Position of the Injured Competitor Under the 
Anti-trust Acts. — Under the Sherman Act as interpreted by the 
courts a business concern which had been injured by an illegal 
combination must sue for damages in that Federal district in which 
the combination was incorporated, or " was found." This involved 
heavy expense oi prosecution at a distance, the transportation o\ 
witnesses, the interruption o^ their business and private affairs, and 
accordingly a material weakening of the plaintiff's ease. It explains 
in part why so few private suitors were successful under the SheT- 



174 THE NEW AMERICAN GOVERNMENT 

man law. They were unable, when their business existence was 
threatened, to secure funds for a lengthy litigation at a distance 
against a powerful competitor. For these reasons the Clayton Act, 
Section 4, provides that a plaintiff under the anti-trust acts, may 
sue in any District Court of the United States, of the district in 
which the defendant resides, or is found, or has an agent. Section 1 2 
also provides that such suit or action against a corporation may be 
brought in any district where it transacts business. This clause is 
intended to remove the necessity of long distance litigation. 

Another serious difficulty which the private suitor encountered 
under the older trust acts was that he must bear the entire burden 
and expense of litigation for several years before he could hope to 
secure a decision, even though the Government meanwhile, in 
another suit, had succeeded in proving that the combination in 
question was illegal. The great resources and machinery of the 
Federal Government have enabled it to win many decisions under 
the Sherman Act which could not have been secured by private 
parties, because of the expense and the large amount of work 
necessary to establish proof. Yet no private suitor could use the 
results of the Government's legal victories despite the fact that 
he was righting for his business life against the same combine which 
the Government had already shown to be in violation of the law. 
He must accordingly take up his proceedings as a separate and 
independent matter entirely distinct from the results already 
secured by the Federal Department of Justice. Section 5 of the new 
Act remedies this by enabling a private party to make use of the 
government decisions in establishing his own case. It provides 
that where the Federal Government in its prosecution of violators 
of the an ti- trust acts either by criminal suits or by injunction, has 
secured a court decision establishing a violation of the law, these 
proceedings shall be prima facie evidence of the violation of the 
Act, and may be used as such by a private suitor against the same 
violators. This clause materially lightens the burden of the injured 
suitor and enables him to make effective use of the Government's 
evidence and results. 

Another notable change in the law is the privilege of securing an 
injunction against continuing violations of the anti-trust acts. 
This privilege is now conferred upon any persons and companies 
which are being seriously damaged by violations of the trust laws. 
Under the old laws a private suitor whose business was injured by 
such a combination could only ask for damages, but could not 
secure an injunction to forbid further illegal restraint of trade. 
Only the Federal Government itself could ask for this latter remedy. 
This was a serious omission, and was in fact such a weakness in the 
Sherman law that the small suitor as we have seen, was practically 
helpless even though he had what appeared to be a clear case 
against the large competitor. The Sherman Act provided that 
the injured party might sue for damages. It also provided that 



THE POWERS OF CONGRESS 1 75 

"it shall be the duty of the several District Attorneys of the United 
States, in their respective districts, under the direction of the 
Attorney General, to institute proceedings in equity to prevent and 
restrain such violations." But the private suitor had no such right. 
Section 16 of the Clayton Act now supplements this omission as 
follows: "That any person, firm, corporation, or association shall 
be entitled to sue for and have injunctive relief, in any court of the 
United States having jurisdiction over the parties, against threat- 
ened loss or damage by a violation of the anti-trust laws, including 
Sections two, three, seven and eight of this Act, when and under 
the same conditions and principles as injunctive relief against 
threatened conduct that will cause loss or damage is granted by 
courts of equity, under the rules governing such proceedings; and 
upon the execution of proper bond against damages for an injunc- 
tion improvidently granted and a showing that the danger of 
irreparable loss or damage is immediate, a preliminary injunction 
may issue." By extending to the concern which is chiefly interested, 
viz., the damaged competitor, the right to secure an injunction and 
thereby put an end to any continuing violation of the Act, the new 
law in reality saves the business existence of the injured competitor 
and places the vast machinery of the courts at his disposal to pre- 
vent further injury. 

Liability of Directors. — One point on which much uncertainty 
existed under the Sherman Act was the individual liability of 
directors, officers and agents of corporations violating the anti- 
trust laws. In many criminal suits for such violations the men 
really responsible were able to escape on the ground that they were 
not active participants in the illegal combination, or that no ev- 
idence had been adduced in the suit to show that they had knowl- 
edge of what was being done by their companies. A strong senti- 
ment against this legal situation led to the inclusion of Section 14 
in the Clayton Act, which provides that whenever a corporation 
shall violate any of the penal clauses of the anti-trust laws such 
violation shall be deemed also to be the act of the individual 
directors, officers and agents who have authorized, ordered or done 
any of the illegal acts complained of, and that such directors and 
officers shall be liable to fine and imprisonment. This Section 
completely clears up the legal status of the director of any offending 
company and makes it to his direct and immediate interest to 
prevent violations of the law by his company. 

Second. — The Regulation of Trade Relations. Price Discrimina- 
tions. — While the language of the Sherman Act had been sweeping 
and general in that it prohibited every contract or agreement in 
restraint of national trade, such Language was for this very reason 
weak and hard to enforce in the courts. Price discriminations and 
exclusive agreements existed in many lines o\ business on an ex- 
tended scale, and many producers were crippled or destroyed in this 
way. For example a wholesale dealer in product "a.'* a Staple 



176 THE NEW AMERICAN GOVERNMENT 

article of wide general consumption, wishes to sell the goods made 
by the combine or trust and those made by its competitors. The 
trust, however, informs him with regret that unless he agrees to 
handle only its own products he either cannot secure its products 
at all or must buy them at a much higher price than if he agreed 
to abandon the independent competitor's goods. Faced by this 
alternative most wholesalers at first objected strenuously, and then 
were slowly beaten into line. If they sought to handle both trust 
and independent goods, the higher discriminatory price which 
they must pay on trust products because they handled both, soon 
deprived them of all profit and many wholesalers speedily found 
themselves pushed to the wall by some other favored dealer sup- 
ported by the trust. The same practice was becoming successful in 
certain retail lines, and it seemed only a question of time until by 
these exclusive sales agreements and price discriminations the large 
combine in certain fields would be able to extinguish competition. 
The Clayton Act in Sections 2 and 3 forbids all such price discrimi- 
nations between consumers, "where the effect of such discrimina- 
tion may be to substantially lessen competition or tend to create a 
monopoly in any line of commerce." Section 3 also forbids the 
lease or sale of goods, machinery or other commodities patented or 
unpatented, or the fixing of prices therefor, on the condition or 
understanding that the purchaser or lessee shall not use the goods, 
machinery, etc., of competitors, where the effect of such an agree- 
ment or lease may be to lessen competition or create a monopoly. 
This clause fortunately revokes the decision of the Supreme Court 
in Henry v. Dick, 224 U. S. 1; 1912, which we have already con- 
sidered. 

Holding Companies and Interlocking Directorates. — Another 
problem which engaged public attention extensively before the 
passage of the Clayton law was the close, intimate relation existing 
between many companies that were supposedly competitive, the 
prevalence of the holding company and of interlocking directorates, 
and the many devices which had been used to bind together the 
industrial combines, the railways and the banks. The Congres- 
sional leaders in 19 14 sought to dissolve these relationships, or at 
least to loosen them, by Sections 7 and 8 of the Clayton Act. These 
provide that corporations engaged in commerce shall not acquire 
directly or indirectly the stock of other corporations so engaged, 
where the effect of such acquisition would be to lessen competition 
between the companies. This in substance only makes more 
definite and detailed the principle already enacted in the Sherman 
law. The Supreme Court has repeatedly declared in the Northern 
Securities case and other decisions that such a merger or common 
stockholding was illegal. Section 7 of the new Act does, however, 
make more explicit and clearer the prohibition against this common 
form of restraint of trade. An exception is allowed in cases where 
such purchase of a corporation's stock is solely for investment 



THE POWERS OF CONGRESS 1 77 

purposes, or where a large concern wishes to form subsidiary com- 
panies and to control their stock for greater convenience of opera- 
tion, or where a railway wishes to start branch lines to act as 
feeders to its main system. In all such instances a company may 
own the stock of the other concerns. 

Closely similar to the holding company is the interlocking 
directorate between several corporations, whether competitive or 
otherwise. It has become customary for the same persons to act as 
directors in several banks, trust companies and other financial 
institutions. The large corporations have as their directors many 
men who are also directors in railways, and the railways have among 
their directors men who are officers in supply companies which sell 
materials to the carriers; it has been no less common for competitive 
manufacturing and trading companies to have interlocking direc- 
torates. This custom was not due solely to the natural desire of 
men of wealth to invest in many and varied enterprises and to 
hold places of authority in such companies. It was rather in many 
instances the result of a plan to control competitive concerns and to 
stabilize conditions, to solidify the direction and management of 
related companies, and especially to secure and retain the patronage 
of the principal customers of the large industrial combinations. The 
Clayton Act seeks to dissolve this system. Section 8 provides that 
after October 15, 19 16, no person shall be a director or officer of 
more than one national bank either of which has deposits, capital, 
surplus and profits of more than $5,000,000, nor shall the officers or 
directors of a State bank of such size be eligible to the directorship 
in a national bank in cities of more than 200,000 inhabitants. The 
officers or directors of a national bank shall not be officers or direc- 
tors of any other bank except savings banks. It also provides that 
no person shall be a director in two or more competitive interstate 
commerce corporations aside from banks and railways, if either of 
them has capital, surplus and undivided profits of over one million. 
Section 10 provides that no common carrier in interstate trade shall 
buy or sell securities, supplies or other articles of commerce, or 
place contracts for construction or maintenance to an amount of 
more than $50,000 in any year with a corporation if any of the 
directors or executive officers, or purchasing or selling agents be at 
the same time a director, manager, or purchasing or selling agent 
in or have a substantial interest in such other corporation. Such 
purchases may, however, be made from such a company by open, 
competitive bidding, providing the company offers the bid most 
favorable to the carrier. 

Provisions on Labor Combinations. — The third purpose oi the 
Clayton Act, to amend the labor law dealing with injunctions and 
boycotts, was carried out in answer to the insistent demands of the 
labor unions. The wording of this third set o\ provisions is not as 
clear and definite as could be desired. It seems to Legalize the 
boycott in interstate trade, and to forbid the issuance of injunctions 



178 THE NEW AMERICAN GOVERNMENT 

in labor disputes, when such injunctions are aimed to forbid picket- 
ing, the strike or the boycott. From the unfortunate phrasing of 
these sections the meaning -is so do»ubtful and unclear as to require 
extended interpretation by the courts, — a most undesirable feature 
of the Act. Former President Taft has pointed out that if the 
courts construe these sections according to well-accepted principles 
of judicial interpretation, the application of the law would be limited 
to a very small class of disputes, and the expectations and hopes of 
the labor unions would be accordingly disappointed. Such an 
outcome could only tend to increase the prevalent criticism of the 
judiciary, when in fact the real difficulty lies in the unwillingness of 
Congress to face the issue squarely, and to insert in the law provi- 
sions whose meaning and intention would be clearly apparent to all. 
The provisions of the Act which deal with these questions are con- 
sidered in the Chapter on The Judiciary, and in the sections dealing 
with the labor boycott. 

Proposals for Revision of the Trade Commission's Powers. — To 
many the^present powers of the Commission seem too exclusively 
negative and prohibitive in nature — it may forbid and investigate 
and prohibit, but it may not permit. Section 11 of the Commission 
Act provides that " nothing contained in this act shall be construed 
to prevent or interfere with the enforcement of the provisions of the 
anti-trust acts or the acts to regulate commerce, nor shall anything 
contained in the act be construed to alter, modify, or repeal the 
said anti-trust acts or the acts to regulate commerce or any part 
or parts thereof." This makes it clear that the Commission cannot 
legalize any agreement. Section 7, of the Clayton law, dealing 
with holding corporations and the union of competitive companies, 
declares that "nothing in this section shall be held or construed to 
authorize or make lawful anything heretofore prohibited or made 
illegal by the an ti- trust laws, nor to exempt any person from the 
penal provisions thereof or the civil remedies therein provided." 
And Section 11 of the same Act after outlining the powers of the 
Commission to prevent unfair competition, again limits the Com- 
mission's authority by declaring that "no order of the commission 
or board or the judgment of the court to enforce the same shall in 
any wise relieve or absolve any person from any liability under the 
anti- trust acts." We have therefore in these two statutes several 
clearly worded clauses which emphatically reassert all the provisions 
of the Sherman Act and prevent the new Trade Commission from 
using its powers in such a way as to apply the Act in a modern sense. 
Yet we have seen that the great advantage to be gained by such a 
Commission is precisely this sound modern view of the law which 
would distinguish between various types of combinations in re- 
straint of trade, allowing those which are beneficial to stand and 
suppressing those which are harmful. It is believed that a Commis- 
sion with power to do this would succeed in solving the problem 
more readily than a legislative control with its inflexible prohibi- 



THE POWERS OF CONGRESS I/O, 

tions and penalties. Recent decisions of the Supreme Court have 
shown a desire to interpret the Sherman Act as a protective rather 
than a destructive measure. In the Acts of 19 14 Congress has done 
well in placing the Commission as an advisory body at the disposal 
of the Federal Courts and the Attorney General, to work out dissolu- 
tion plans whereby illegal restraints of trade and agreements may 
be dissolved, or brought into harmony with the law. It would be 
even better to turn over entirely to the Commission the authority, 
subject to judicial review, to prevent combinations which were 
destructive, and to permit those which would be advantageous to 
the community. The Commission by the fact that it conducts a 
constant supervision over interstate companies is especially well 
qualified to distinguish between the sinister and the beneficial, and 
to administer the law with flexibility and with greater control of 
the changing details. It is strongly urged that the Commission 
should have authority to approve price-fixing agreements and other 
arrangements in interstate trade which are now forbidden by the 
Sherman Act, if after investigation the Commission believes these 
agreements to be beneficial in their effects. It has been suggested 
that a combination might be made between the Federal license plan 
described in the next section and the Trade Commission, whereby 
the latter body would grant licenses or permits to those engaged in 
interstate commerce. According to this view, the Commission, under 
authority from Congress, would also fix the general conditions upon 
which such licenses would be granted and would watch over the 
enforcement of these conditions. It would exclude from interstate 
commerce those who did not conform to the law and did not secure 
such licenses. 

This view of the proposed duties of the Commission, it should be 
noticed, offers a much broader scope of liberty to interstate com- 
panies, and provides a much clearer definition of what they can, as 
well as what they cannot do under the law. It would therefore 
remove most of the uncertainty now hanging over business enter- 
prises under the Sherman Act. Against this proposal certain force- 
ful objections have been urged. (1) The question of constitu- 
tionality. (2) The possible influence of such a plan in maintaining 
high prices. 

(1) Its unconstitutionality; it is urged that under the 5th Amend- 
ment which declares that "no person shall be deprived of lite, 
liberty or property without due process of law," a Commission 
would be forbidden to reduce rates, prices, or terms oi sale or 
production in such a way as to deprive investors and producers of a 
proper return on their capital. Numerous decisions of the courts 
bave fixed the principle that under this amendment no firm or 
company can be compelled to produce ;it a loss nor have its right to 
produce at a profit taken from it. This objection would be readily 
avoided so long as the Commission allowed the companies subject 
to its regulation to fix prices at a level that would enable them to 



180 THE NEW AMERICAN GOVERNMENT 

make a reasonable profit. In doing so it would not be depriving 
them of their property without due process of law. 

On the point of constitutionality it has also been urged that the 
only industries heretofore subject to regulation of rates and prices 
by the Government have been common carriers and public utility 
corporations such as telephone, telegraph, theater, water supply, 
lighting and similar companies, while private industries have not 
been so regulated. So long, however, as the regulation took the 
form of an approval or disapproval of price-fixing agreements in 
interstate trade, it would not be a simple regulation of prices but 
rather of agreements and combinations and for this reason would 
be justified as a protection of interstate commerce. 

(2) Would the Trade Commission by keeping up prices, guarantee 
the continued existence of inefficient high cost producers and trad- 
ing companies? If the Commission is to proceed upon the principle 
that every existing producer must be allowed to charge rates that 
will give him a continued profit the commission plan would be 
nothing less than the government protection of the inefficient and 
unworthy at the cost of the country as a whole. Under it we 
should have a guarantee of continued high prices with a moderate 
profit assured to the worse producers and a high profit to the better 
managed companies. Such a plan would neither work to the 
advantage or improvement of our industries and industrial methods 
nor to the benefit of the consumer. If, however, we examine the 
efforts made in similar fields by other bodies such as the late tariff 
board and the Commerce Commission, we find that the opposite is 
true in those departments. It was not the purpose of the tariff 
board in its researches into the cost of production at home and 
abroad to prepare a system of tariff rates that would protect every 
American manufacturer regardless of whether his methods were 
modern or antiquated, economical or inefficient, or his wage rates 
high or low, nor could such a rate of tariff reasonably be demanded 
by any large body of producers. On the contrary the protective 
principle requires that those producers who are efficient and employ 
up-to-date methods shall be protected, since they constitute the 
progressive element in the industry while those who refuse to 
develop their industries along modern lines should not be main- 
tained at the cost of the whole community. The tariff proposed 
was not a protection to the inefficient but to the well-organized 
modern enterprise. The same is true of the railways. When a 
schedule of rates is proposed for the approval of the Commission 
that body does not and cannot base its decision upon the dividend 
demands of the most poorly managed roads with inadequate rolling 
stock, terminal facilities and the like. On the contrary, the Com- 
mission conceives its duty to be to fix a rate which will allow a 
profit to the fairly well-managed line leaving variations from the 
rate of profit to act as an incentive to better management. 

If the new Trade Commission were given power to approve of 



THE POWERS OF CONGRESS l8l 

beneficial, advantageous agreements even when in restraint of 
trade, public opinion would compel that body to withhold its 
approval of any price-fixing agreements or combinations which 
destroyed healthful competition or which fixed a high price regard- 
less of the proper use of modern efficient methods of production. 
On the other hand, such a commission could not lower rates beyond 
the point of safety for the efficient producer since the effect of such 
a change would immediately be shown by the evidence adduced 
before the Commission. If these two statements are correct, one 
of the chief objections to the commission plan is overcome. There 
remains, however, a very forcible criticism by Mr. James J. Hill to 
the effect that a commission plan would lead to the destruction 
of competition and that such a change would remove all incentives 
to the adoption of new methods and the improvement of industrial 
processes. This objection has not been under discussion for any 
length of time, but it does not seem to be unanswerable. The 
action of a Trade Commission in approving price-fixing combina- 
tions tends to limit prices as we have already seen, and this pressure 
would in itself be sufficient to induce new economies and modern 
methods. 

Proposals for Federal License and Federal Incorporation. — In 
addition to the prohibition of rebates, the Sherman Act, the pub- 
licity laws and the national Trade Commission, it has also been 
proposed that a plan either of Federal license or of Federal chartering 
of interstate trading companies be established. The idea is that 
certain standards both of publicity, stock issues, price-fixing agree- 
ments and other matters connected with trade companies shall be 
fixed, to which all interstate companies shall conform in order to 
receive the permit or the charter to engage in national business. 
These suggestions have been before the v public since 1904, when 
they were presented in a valuable report by the bureau of corpora- 
tions of the department of commerce. We shall consider only the 
main outlines of each plan. 

Federal Incorporation. — The chief features of this proposal are: 
(a) The grant of a permanent national charter by the Federal Gov- 
ernment to companies desiring to engage in interstate commerce. 
Congress has the right to grant such a charter under its power to 
regulate commerce. This principle was established in McCulloch 
v. Maryland, 4 Wheaton, 316; 18 19, in connection with the establish- 
ment of the United States Bank. It was approved under the 
congressional powers to levy and collect taxes, to borrow money and 
make use of the same for the payment of the debts of the United 
States. If, under each of its various powers, the National Govern- 
ment may in this way incorporate companies connected with the 
power in question, then it has an undoubted right to charter corpo- 
rations which shall engage in interstate commerce. 1 In granting 

1 lt has already exercised this authority for many years, by chartering mil- 
ways and other interstate enterprises. 



152 THE NEW AMERICAN GOVERNMENT 

these charters the advocates of the plan propose that the Federal 
Government shall attach a number of conditions which will enable 
it to control the companies in question at all times, (b) Exclusion 
from interstate commerce of all companies not holding a Federal 
charter. There can be no doubt that Congress has ample authority 
to adopt this part of the plan also. If any company refused to 
incorporate under the system provided by the National Government 
it would be deprived of its interstate trade privileges and would be 
forced to confine itself to the limits of a single State. No large 
commercial companies could forego the advantages of interstate 
business. They would undoubtedly conform to the requirements of 
such a law and take out charters, (c) Could Congress grant to 
the companies which it chartered the authority to engage in manu- 
facturing and production in the States? It is clear that such 
authority would be of the greatest value to the large companies; 
unless they possessed it they would have to secure from the States 
a charter of incorporation to manufacture and thereby duplicate 
charters, officers, stockholders, and other corporate requirements. 
While duplication would be possible, it would not be desirable. 
On the other hand, it seems most unlikely that the courts would 
allow Congress to charter companies for the purpose of engaging 
in manufacturing, since Congress has no constitutional authority 
over manufactures. The incorporation plan, therefore, has the 
marked disadvantage of requiring duplicate corporations. 

Federal License. — This consideration has turned attention 
toward the plan of Federal license. It contemplates (a) a simple 
temporary permit by the National Government issued to companies 
desiring to engage in interstate commerce; (b) the requirement that 
certain conditions of organization, methods of management, etc., 
etc., as above described, should be fulfilled before a license or permit 
was issued; (c) full and detailed reports and returns to be made at 
regular periods by the corporation to the Federal authority in 
charge; (d) publicity of such records as the Federal Government, 
in answer to public opinion, should consider necessary, having in 
mind both the public interest and the safety of the corporation 
itself; (e) the regulation of the issue of securities by such companies. 
This regulation would take the same form approximately as that 
now provided by our State public service commissions. Such 
security regulation is much criticized in various quarters but its 
purpose, methods, and practical results in the States present strong 
advantages both from the standpoint of the public and the investor; 
(f) all unlicensed companies would be excluded from interstate 
commerce. A license would therefore be compulsory; (g) the strict 
enforcement of the law would be obtained by the temporary 
suspension or the final revocation of the permit or license in case 
the company refused to comply with the legal requirements; 
(h) such a law could be readilv administered by the newly organ- 
ized Federal Trade Commission. It would hold hearings, take 



THE POWERS OF CONGRESS 1 83 

testimony either on complaints or on its own motion, would con- 
sider applications for permits and it would be assisted in this work 
by the extensive and highly organized staff of the corporation bu- 
reau. In the operation of this plan no serious administrative 
difficulty would be encountered which has not already been met 
and overcome in other departments of the Government. A com- 
parison of the two plans shows that the incorporation proposal 
enjoys the great advantage of uniformity. The license or permit 
plan, however, is undoubtedly constitutional, requires no duplicate 
organization of the companies involved and but slight expense on 
their part. It is founded upon existing precedents which have been 
worked out by the commerce commission in part. Finally it fits in 
with existing business conditions and involves less disturbance than 
any other proposal. For these reasons it seems to offer the greater 
prospects of success until such time as public opinion is ready to 
transfer the regulation of manufacture to the National Government. 
Federal and State Powers of Incorporation. — Each State may 
incorporate companies for any purpose that it chooses. It may give 
these companies in their charters the right to exist and transact 
business anywhere in the world, provided that other State govern- 
ments or Congress, or foreign governments will permit such corpo- 
rations to come into their respective jurisdictions. No corporation 
without this right can enter another State to open up its business 
offices or transact its affairs, neither may it engage in interstate 
trade, unless Congress either expressly or tacitly permits. The lax 
corporation laws of the States have so greatly lowered the require- 
ments for chartering a company, and the variety of rules passed by 
the different States to govern corporations coming into their 
boundaries from other States have, taken together, formed a chaos 
of corporation law and regulation which can be straightened out in 
only one way — by turning over to the Federal Government the 
entire control over incorporation and the rights which flow from it. 
At present Congress can only charter a company to engage in those 
forms of business which are subject to Federal regulation, because 
the constitutional powers of Congress do not extend beyond such 
subjects. For these reasons we need an amendment extending the 
Federal authority over all matters connected with the formation 
and powers of any companies which transact business in the United 
States. The reasons for State control of incorporation were orig- 
inally strong and binding. The policy of each State it was felt 
should be free on this question. It should have the exclusive con- 
trol over any company, whether chartered by itself or by other com- 
monwealths which might wish to enter its boundaries to transact 
business there, and this reasoning is unanswerable so long as the 
States vie with each other to grant the most favorable terms oi 
incorporation to new companies. If they are allowed to do this 
then it is essential that each commonwealth must have a correspond- 
ing authority to protect itself by supervising, regulating and even 



1 84 THE NEW AMERICAN GOVERNMENT 

excluding such corporations from its bounds. But on the other 
side, the corporation itself needs more protection. And more espe- 
cially for those which are chartered by States with reasonable or high 
standards of incorporation there snould be some central authority, 
such as the Federal Government, to insure the free entrance to all 
the States of the Union for any company which had complied 
with all the necessary requirements of safety, honesty, publicity, 
etc. The new problem in national incorporation is to transfer to 
the central government this power. Business has become national. 
Corporations are no longer matters of State concern. These are 
very apparent commercial facts, and our law should correspond with 
them. Such are the considerations which have created and are 
rapidly strengthening the demand for Federal control of incorpora- 
tion. 

REFERENCES 

Annual Report of Bureau of Corporations, U. S. Department of Commerce and 
Labor for 1904. See especially, also the last report, for 1914. 

Special Reports of Same: The Transportation of Petroleum, Tobacco, Sugar, 
Cotton Exchanges, Lumber, Inland Water Transportation. 

Hearings before the Committee on Interstate Commerce: United States Senate, 
6 2d Congress, pursuant to Senate Resolution 98. Government Printing Office, 
Washington, 191 2. These reports give a complete and valuable statement of the 
whole case both for and against a trade commission. 

The Trade Commission Act of September 26, 19 14. 

The Clayton Act of October 15, 19 14. 

J. N. Judson: Interstate Commerce, 2d Edition. 

R. C. Heisler: Federal Incorporation. 

W. H. Stevens: "Unfair Methods of Competition," The Annals, January, 
1916. 

QUESTIONS 

1. What do you consider the chief differences in purpose and aim between 
the Federal Railway Law, the Sherman Act, and the Publicity Laws? 

2. Explain the rise of the demand for government publicity in corporate 
affairs. * 

3. Outline the powers of the Bureau of Corporations. 

>4^ What kinds of corporations could the Bureau regulate? 

5. The Commissioner of Corporations calls for reports by Insurance 
Companies on their business, with a view to possible publication. A company 
refuses to report. Can it be compelled to do so? Reasons. 

6. Outline the more important work performed by the Bureau of Corpora- 
tions. 

S Explain the chief features of the Corporation Tax of 1909. 
Why was it passed? 
9. Why are large companies more desirous now of securing public approval 
and co-operation than they formerly were? 

10. Prepare an essay on the Federal Publicity Laws showing their distinct 
purposes and results. 

11. Resolved that administrative rather than legislative control of business 
combinations is advisable. Defend either side of this question. 

12. You are present at a discussion of judicial control of the trusts and the 
difficulties which this control has encountered in recent years. Outline your 
views. 

13. Resolved that the government attempts to control and regulate the Beef 
Trust should be conducted on new and different lines. Outline your views. 



THE POWERS OF CONGRESS 185 

14. Explain to a group of men who have not studied the subject the new 
Federal Trade Commission and its powers. 

15. What is the procedure before the Commission. 

16. When appeals are made from the Commission's rulings to what court 
are" they taken, and why? 

17. Upon an appeal to the courts from the Commission's decision the defend- 
ant introduces new evidence. What will the court do, and why? 

18. In a discussion of the Commission's powers it is said that the Commission 
may excuse or approve acts and agreements in interstate trade which were 
formerly forbidden by the Sherman Act. Explain with citations whether this 
view is correct or not. 

19. How can the Commission get the information on which to base its 
decisions and rulings? 

20. What are your views as to the usefulness of the Commission in future 
law-suits under the Anti-Trust Acts? 

21. Can the Commission secure information only when a case is before it? 
Explain fully. 

22. What does the Commission Act of 1914 provide as to the Bureau of 
Corporations? 

23. You are asked to draw up a brief report showing the difference between 
the powers of the Bureau of Corporations und the present Trade Commission. 
Outline your report. 

24. Why was the Clayton Act passed? 

25. Give your views of the correctness of each of the following statements, 
verifying them with citations from the Sherman law: 

(a) The Sherman Act enables the injured competitor to make use 

of the results of government suits against a combination 
which is violating the law. 

(b) The Sherman Act enables anyone whose business is injured by 

an illegal combination to secure a court injunction imme- 
diately stopping the continuance of the injury. 

(c) The Sherman Act enables the injured company or firm to sue an 

illegal combination in any Federal Court in any section of the 
country where the plaintiff has suffered an injury. 
How does the Clayton Act seek to remedy these conditions? 

27. A combination is accused of certain illegal acts in attempting to destroy 
its competitors. The directors of the combination when accused in the criminal 
courts defend themselves by saying that they did not personally commit the 
acts complained of. Show the difference between the provisions of the Sherman 
and Clayton Acts respectively on this point. 

28. What do you understand by price discriminations and exclusive agree- 
ments? 

29. Was an exclusive agreement valid under the Sherman Act in the inter- 
state sale of patented articles? 

30. What is the chief change wrought by the Clayton law on this 
point? 

31. What is a holding company? 

32. Was it permitted under the Sherman Act when it involved restraint of 
competition or trade between the States? 

S3. Is it legalized by the Clayton Act? 

34. What are interlocking directorates? 

35. Explain and illustrate the application of the Clayton Act to such direc- 
torates. 

36. Outline briefly the difference between the Sherman Act as interpreted 
in the courts, and the Clayton Act, with reference to labor boycotts in interstate 
trade. 

37. Resolved that the Trade Commission should have power to permit agree- 
ments in restraint of trade when such agreements in its judgment are beneficial. 

Defend either side of this question. 

38. Resolved that similar power should also be conferred on the Commission 



1 86 THE NEW AMERICAN GOVERNMENT 

to approve price-fixing agreements. Defend either side of this question and show 
the constitutional aspects of the problem. 

39. What do you understand by Federal license and Federal incorporation 
respectively of interstate companies? 

40. Why have the proposals been made? 

41. You are asked to report on the details of a bill for Federal incorporation. 
Outline your report. 

42. A report on Federal license. 

43. Explain the difference between the constitutionality of the two plans, 
and give your views as to their relative feasibility. 

44. What constitutional power would the Federal Government have to 
charter or incorporate companies engaging in interstate trade? Cite an author- 
ity. 

45. Why have the States passed lax corporation laws? 

46. Can a corporation chartered in one State operate in a second without 
the permission of the latter? 

47. Prepare a brief essay on the advantages and disadvantages of a con- 
stitutional amendment authorizing Congress to regulate the granting and 
revocation of all corporate charters, whether financial, commercial, manufac- 
turing, agricultural, or otherwise. 



CHAPTER IX 

POWERS OF CONGRESS— Continued 
FEDERAL POWER OVER INTERSTATE COMMERCE 

Congress has not confined its regulations to the carriers and 
the large combines, — it has made free use of its commercial power 
in numerous other directions which have been approved by the 
courts, and there is now no doubt that Congress possesses a full 
power to control national trade in any and every necessary way. 
As examples of this we shall consider : 

The Control over Immigration. 

The White Slave Act. 

The Pure Food and Drug Laws. 

The Lottery Acts. 

The Immigration Law. — The Immigration Act as amended 
March 25, 19 10, provides a tax of $4.00 for each alien entering the 
United States. The following classes are excluded from entrance : — 

Idiots. 

Insane. 

Epileptics. 

Paupers and persons likely to become a public charge. 

Professional beggars. 

Persons suffering from tuberculosis or other dangerous or loath- 
some contagious diseases. 

Persons physically or mentally so defective as to be unable to 
make a living. 

Persons convicted of a crime or misdemeanor involving moral 
turpitude. 

Polygamists. 

Anarchists. 

Women or girls imported for immoral purposes and persons aid- 
ing in their importation. 

Contract laborers — that is, those induced to migrate by offers or 
promise of employment or by agreements, except artists and pro- 
fessional men. 

Children under e6 years ot age unaccompanied by their parents. 

Chinese and persons of Chinese descent, except students, mer- 
chants and professional men, or employes who accompany exhibits 
to any exposition given within the United States. 

Transportation companies and vessel owners are forbidden from 

187 



1 88 THE NEW AMERICAN GOVERNMENT 

soliciting or inviting emigration to the United States, although they 
may issue advertising matter on the sailings of their vessels, etc. 
A physical and mental examination of foreigners arriving at our 
ports is made by medical officers of the national health service. 
The costs of this inspection are paid by the head tax on each 
immigrant and a considerable surplus still remains in the "Immi- 
grant Fund." All aliens brought into the country in violation of 
law, are, if possible, immediately sent back to the country whence 
they came, on the vessel bringing them, at the expense of the vessel 
owners. There is also a heavy fine upon the transportation com- 
pany or vessel owner for unlawfully introducing immigrants into 
the United States. Aliens who become a public charge from causes 
existing prior to their landing in America are also deported to their 
home country. This may be done up to three years from the time 
of their entrance. The execution of the law is entrusted to the 
Commissioner General of Immigration; he appoints, subject to 
the approval of the Secretary of Commerce, a number of commis- 
sioners at the various seaports of the United States, together with 
inspectors, investigators and other employes. Disputes as to the 
admission of aliens are referred to boards of special inquiry ap- 
pointed by the Commissioner at each port; these boards decide as 
to the alien's qualifications for entrance and an appeal may be 
taken from their decision to the local commissioner, from him to the 
Commissioner General and ultimately to the Secretary of Commerce. 
The Commissioner General also establishes a division of information 
for the benefit of immigrants. This division aims to promote the 
proper distribution of immigrants into those sections of the country 
where immigration is most needed. Correspondence with State 
and territorial officers is conducted and complete information re- 
garding the resources and opportunities in each State is presented 
in foreign languages and distributed among the incoming aliens. 
Protection of Immigrant Women. — The immigration authorities 
and the Department of Justice having ascertained that organized 
and systematic efforts were carried on to induce or force respectable 
women and girls, arriving in the country, to lead an immoral life, 
and that such women because of their ignorance of the country and 
the language were in special need of protection, it was decided to 
take unusual precautions for the safety of arriving immigrants. 
Not only was the importation of women for an immoral purpose 
forbidden but Section 3 of the Act of 1907 provided that whoever 
should maintain, control, support, or harbor for an immoral pur- 
pose, any alien woman or girl, within three years after she shall have 
entered the United States should be guilty of a felony. This section 
led to an important decision on the legal powers of Congress over 
immigration. A Hungarian woman, having entered the country 
in November, 1905, came to Chicago in October of 1907 to a house 
of vice which was purchased in November of the same year by 
Keller and Ullman. The girl had been engaged in the illicit calling 



THE POWERS OF CONGRESS 1 89 

about eleven months at the time that Keller and Ullman were 
arrested and prosecuted under the clause above mentioned, of the 
Immigration Act of 1907. This case presented the important 
constitutional question whether Congress could exercise a pro- 
tecting care over immigrants during a period of three years after 
they had entered the country or whether an immigrant ceased to be 
an immigrant before that time and therefore ceased to be under the 
national control and regulation and became subject only to State 
protection. The Supreme Court decided, in Keller and Ullman v. 
U. S., 213 U. S. 138; 1909, against the National Government and 
declared Section 3 of the act unconstitutional. The Court held 
that the Constitution conferred on the United States no power to 
regulate the ordinary affairs and relations of aliens after they had 
taken up residence. It pointed out that the census of 1900 gave the 
total population of the country at 76,000,000 of which about 
10,000,000 were persons of foreign birth. Could Congress extend 
its control over all these persons under the guise of protecting 
immigrants? If so, declared the Court, Congress might regulate 
all their other relations regardless of the States. Such was clearly 
not the intention of the Constitution. Congress can control immi- 
gration but not the conditions of the immigrant for three years 
after he has entered the United States. A strong dissenting opinion 
was rendered by Justices Holmes, Harlan and Moody, who pointed 
out that if Congress did not have the power to control immigration 
by punishing those who corrupted or preyed upon immigrants in an 
unlawful way, then some of the very substance and value of its 
protective authority over commerce was lost. This important 
limitation of the national power over, and protection of the immi- 
grant after he or she has taken up a residence within the country 
should be remedied and Congress should possess ample authority 
to deal with the problem as a national question. This is all the 
more essential in that our treaties with foreign nations obligate us, 
as a nation to protect the lives, the safety, and the welfare of their 
citizens within our borders, and we as a nation should exert the 
powers necessary to carry out the promises and obligations which 
as a nation we have contracted. In order to remedy this, the Mann 
White Slave Traffic Act of 19 10 contains a special provision requir- 
ing the registration of certain information about every alien woman 
or girl engaged in vice within three years after she enters the United 
States. The Act requires this information to be received and cen- 
tralized in the office of the Commissioner General of Immigration. 
In the Keller case the Supreme Court, in declaring unconstitutional 
the attempt to punish persons for harboring alien women and girls 
engaged in this illicit calling, had made the suggestion that possibly 
a modified protection of immigrants might be constitutional if made 
in pursuance of a treaty between the United States and some foreign 
power. The Mann Act builds upon this suggestion by requiring 
the registration of women and girls as above described, in pursuance 



190 THE NEW AMERICAN GOVERNMENT 

of an agreement made between the United States and foreign pow- 
ers at the Paris conference of 1902, the substance of which was that 
the respective governments represented in the conference should 
supervise and protect immigrant women and girls during a three- 
year period. Here again, however, the same constitutional diffi- 
culty may arise unless the Supreme Court is willing to concede to 
the Federal Government what it undoubtedly should have, the full 
and undisputed right to protect alien women for an indefinite 
period, in fact, so long as protection is needed against those dangers 
which arise from the fact that they are immigrants. 

The White Slave Act. — On June 25, 1910, the so-called Mann 
White Slave law was signed by the President. This oft-cited 
measure makes it a felony punishable by a heavy fine and imprison- 
ment for any person to cause to be transported or to aid in trans- 
porting any woman or girl in interstate or foreign commerce, for 
immoral purposes, or to induce or compel a woman or girl to go 
from one place to another in interstate or foreign commerce or in 
any territory, for such a purpose. The law was passed after a 
thorough investigation, made by agents of the Department of 
Justice, had made it clear that immense numbers of women and 
girls were not entering immoral life voluntarily, as was commonly 
supposed, but were being lured or forced by violence and crime into 
the abyss, and that many persons were systematically engaged in 
the revolting vocation of securing and selling new victims. This 
traffic so far as it takes place entirely within the borders of a State 
cannot be reached by the National Government for constitutional 
reasons, but when it crosses State lines it becomes subject to Federal 
regulation. The Mann Act operates on the same principle as the 
food laws, the lottery act, and the trust regulations — it prohibits 
any attempts to circulate the forbidden object in interstate com- 
merce. It has been repeatedly tested in the courts and although 
opposed by all the ingenuity and legal skill which could be mustered 
by the accused, it has been upheld by the Supreme Court and is 
now a strong and effective weapon in the fight against organized 
vice. There is needed however a much larger appropriation for the 
detection and prosecution of offenders and the co-operation of 
State authorities, in order to stamp out this blot upon our civiliza- 
tion. 1 The attempts to overturn the law have raised some impor- 

1 The chief provisions of the Act of 19 10 are: 

Sec. 2. "That any person who shall knowingly transport or cause to be 
transported, or aid or assist in obtaining transportation for, or in transporting, 
in interstate or foreign commerce, or in any Territory or in the District of 
Columbia, any woman or girl for the purpose of prostitution or debauchery, or 
for any other immoral purpose, or with the intent and purpose to induce, entice, 
or compel such woman or girl to become a prostitute or to give herself up to 
debauchery, or to engage in any other immoral practice; or who shall knowingly 
procure or obtain, or cause to be procured or obtained, or aid or assist in procur- 
ing or obtaining, any ticket or tickets, or any form of transportation or evidence 
of the right thereto, to be used by any woman or girl in interstate or foreign 
commerce, or in any Territory or the District of Columbia, in going to any 



THE POWERS OF CONGRESS 191 

tant questions concerning the extent of the national authority over 
interstate trade. The most serious objections were raised by the 
defendants in Hoke and Economides v. U. S., 227 U. S. 316; 1913. 
Here it was urged, first: that any person had a right to pass from 
State to State, and that a woman, no matter what her moral 
character might be, possessed this right. Accordingly, when 
Congress attempted to prohibit anyone from inducing a woman 
to go from State to State it was in effect saying that persons might 
not be persuaded to do what they had a legal right to do. This 
was impossible as a legal doctrine, said the defence, for Congress 
had no such authority. To this the Supreme Court answered that 
no one had an absolute right to pass in interstate trade, — if he or 
she intended to make use of this right for a purpose which Con- 
gress deemed immoral, harmful, or injurious to the community, 

place for the purpose of prostitution or debauchery, or for any other immoral 
purpose, or with the intent or purpose on the part of such person to induce, 
entice, or compel her to give herself up to the practice of prostitution, or to give 
herself up to debauchery, or any other immoral practice, whereby any such 
woman or girl shall be transported in interstate or foreign commerce, or in any 
Territory or the District of Columbia, shall be punished by a fine not exceeding 
five thousand dollars, or by imprisonment of not more than five years, or by 
both such fine and imprisonment, in the discretion of the court. 

Sec. 3. "That any person who shall knowingly persuade, mduce, entice or 
coerce, or cause to be persuaded, induced, enticed, or coerced, or aid or 
assist in persuading, inducing, enticing, or coercing any woman or girl to 
go from one place to another in interstate or foreign commerce, or in any 
Territory or the District of Columbia, for the purpose of prostitution or de- 
bauchery, or for any other immoral purpose, or with the intent and purpose 
on the part of such person that such woman or girl shall engage in the practice 
of prostitution or debauchery, or any other immoral practice, whether with or 
without her consent, and who shall thereby knowingly cause or aid or assist in 
causing such woman or girl to go and to be carried or transported as a passenger 
upon the line or route of any common carrier or carriers in interstate or foreign 
commerce, or any Territory or the District of Columbia, shall be deemed guilty 
of felony and on conviction thereof shall be punished by a fine of not more than 
five thousand dollars, or by imprisonment for a term not exceeding five years, or 
by both such fine and imprisonment, in the discretion of the court. 

Sec. 4. "That any person who shall knowingly persuade, induce, entice, or 
coerce any woman or girl under the age of eighteen years from any State or 
Territory or the District of Columbia to any other State or Territory or the 
District of Columbia, with the purpose and intent to induce or coerce her, or 
that she shall be induced or coerced to engage in prostitution or debauchery, or 
any other immoral practice, and shall in furtherance of such purpose knowingly 
induce or cause her to go and to be carried or transported as a passenger in 
interstate commerce upon the line or route of any common carrier or carriers, 
shall be deemed guilty of a felony, and on conviction thereof shall be punished 
by a fine of not more than ten thousand dollars, or by imprisonment For a term 
not exceeding ten years, or by both such line and imprisonment, in the discretion 
of the court. 

Sec. 5. "That any violation of any ol" the above sections two. three, and four, 
shall be prosecuted in any court having jurisdiction of crimes within the district 
in which said violation was committed, or from, through, or into which any such 
woman or girl may have been carried or transported as a passenger in interstate 
or foreign commerce, or in any Territory or the District of Columbia, contrary 
to the provisions of any of said sections." 



192 THE NEW AMERICAN GOVERNMENT 

then Congress could not only withdraw the privilege of interstate 
trade for such purpose, if it chose, but could also prohibit other 
persons from inducing a woman to make use of her supposed right 
for such immoral or injurious purpose. In the second place, the 
defendant urged that Congress had no authority whatever over 
morals, — this was reserved to the State governments; when Con- 
gress attempted to reach over into the bounds of a State and 
forbid an act which it considered immoral, it was usurping State 
authority in an unconstitutional manner. Hence, the Act of iqio 
exceeded the Federal powers. To this the Court replied that not 
the practice of commercialized vice itself was forbidden by the 
Mann Act, — such practice was undoubtedly subject only to State 
regulation; but the purpose and terms of the law expressly aimed to 
prevent the passage from State to State of women under the control 
of commercialized vice. This passage no State had the constitu- 
tional authority to regulate, it was solely subject to the power of 
Congress. Accordingly the Act was a constitutional exercise of 
the regulation of commerce and was upheld in all points. 

The Suppression of Lotteries. — Has Congress the power to set 
up other moral standards and prohibitions in interstate commerce? 
The original purpose of the regulative power was undoubtedly z. 
business one, that is to give Congress control over national trade in 
order to prevent State interference. At various times in our 
history, however, such moral problems as the lottery, the white 
slave evil, and intoxicating liquors have attracted public attention 
and their suppression has been forcibly urged upon the Government. 
In 1895 Congress passed "an act for the suppression of lottery 
traffic," which prohibited the sending of lottery tickets through the 
mails or from State to State by the ordinary channels of trade. 
Under this Act, C. F. Champion, alias W. W. Ogden, and others 
were prosecuted for having circulated in interstate commerce from 
Dallas, Texas, to Fresno, California, certain tickets or lottery 
shares of the Pan-American Lottery Company. In their defence 
they urged: First, that the suppression of a lottery was not an exer- 
cise of any power belonging to Congress; second, that the sending 
of lottery tickets was not an operation in interstate commerce; 
third, that the power to regulate lotteries and the sale of tickets was 
exclusively within the jurisdiction of the State government. It was 
claimed that the whole question of moral regulations of sale and 
purchase in such cases was intended by the Constitution to be 
governed only by the States and that Congress had exceeded its 
powers by the Act of 1895. The Supreme Court, in its decision, 
Champion v. Ames, 188 U. S. 321; 1903, overruled the defendant 
on all points and held that the power to regulate included the power 
to prohibit; that Congress being vested by the Constitution with 
full authority over commerce, could use that power to remove from 
commerce any objectionable or dangerous elements. The law under 
which Champion was convicted was held constitutional. Similar 



THE POWERS OF CONGRESS 193 

Acts in 1897 forbidding interstate trade in articles intended for an 
immoral purpose and the circulation of improper literature have 
likewise been upheld. Popper v. U. S., 98 Federal Reporter, 423, 
decided 1899. 

Pure Food Laws. — A new and important side of the national 
control over interstate trade has developed in the Pure Food Laws. 
The adulteration of food, drugs and beverages has long been a 
matter of common knowledge. This adulteration was most wide- 
spread in the manufacture of whiskeys, wines, and other alcoholic 
beverages. By the addition of flavoring and coloring matters to 
various cheap compounds of alcohol, the manufacturer was able 
to produce any beverage at a low price and to market it under the 
general trade name of "whiskey," "wine," "brandy," etc. The 
practice soon spread to the adulteration of drugs, and it became 
customary to cheapen many standard articles, even those used in 
the preparation of medicines, by the addition of various ingredients 
of lesser cost. Nor did the process end here; it invaded the field of 
food production. The homely squash and the apple when doctored, 
flavored, colored, and attractively packed, became "preserved 
strawberries"; oleomargarine dyed yellow took on the semblance 
and name of "butter": strips of veal were metamorphosed into 
"potted chicken," while even those cereals which form the food 
mainstays of the poorest classes were not spared, but flour, corn 
meal, oat meal, etc., were all "blended" with sif tings, cheaper 
meals and even mineral earths. The eagerness to put food produc- 
tion on a "commercial basis" had meanwhile invaded the meat- 
packing industry and animals were slaughtered under conditions 
which, mildly stated, were unsanitary, while many diseased or 
decayed meats were packed for sale to the trade. 

With a few notable exceptions the whole field of manufactured 
food, drugs and drink production was honeycombed by these prac- 
tices. Aside from the extensive fraud involved, the public health 
was threatened by the dangerous preservatives or adulterants used. 
When the reaction came, a great wave of popular feeling surged 
over the country, forcing Congress to take immediate action for the 
protection of all classes against the practices described. The legal 
obstacle at once arose, — what constitutional authority had Con- 
gress to regulate manufactured foods, drugs or adulterations? 
Obviously none whatever, for the Constitution does not mention 
manufactures. In the emergency it was decided to resort to the 
power to regulate commerce between the States. Two important 
laws known as the Food and Drugs Aet ami the Meat Inspection 
Act were passed and approved June 30, 1906, to prohibit the cir- 
culation in interstate trade of all fraudulent ami unhealthful foods, 
drugs, beverages and meats, that is those which are not prepared 
according to the rules ami standards authorized by Congress. 

These rules are as follows: 

Meat Inspection.— All meats slaughtered for interstate trade 



194 THE NEW AMERICAN GOVERNMENT 

must be carefully examined by a Federal inspector before slaughter; 
the carcase is also examined after slaughter and stamped as 
" passed" or " condemned," — those meats which are packed or 
canned must also be inspected and marked and finally the slaughter- 
ing establishment itself must have been examined and approved. 
Animals and carcases which show certain dangerous diseases must 
be destroyed, others which are only partly affected may be used in 
part. The cost of inspection is borne by the Government. To avoid 
collusion or temptation the inspectors are frequently moved from 
one establishment to another; they are appointed by the Secretary 
of Agriculture who has charge of the execution of the law. 1 

Food and Drugs Act. — This law is aimed to prevent adulteration 
and misbranding; it prohibits the use of deceptive labels on both 
food and drugs; medicines which contain alcohol, laudanum, and 
other dangerous ingredients shall have the proportion of such 
ingredients plainly stated on the wrapper and label; it further re- 
quires that all drugs shall conform to the standard of purity fixed 
by the national pharmacopoeia. 2 

In the protection of foods it prohibits the use of harmful preserva- 
tives and the adulteration of any food product by the addition of 
other ingredients, unless the composition is so marked on the label; 
one product may not be sold under the name of another; the law 
also applies to beverages. The enforcement of the Act is entrusted 
mainly to the Bureau of Chemistry of the Department of Agricul- 
ture, which collects and analyzes samples of foods and drugs cir- 
culating in interstate trade. If such samples prove to be manufac- 
tured contrary to the law the manufacturer is immediately notified 
and allowed to present a full statement, and in case a serious viola- 
tion of the law has taken place, the evidence is presented to the 
Department of Justice for prosecution. Where the violation is not 
an important one no prosecution is begun except in case of repeated 
failure to observe the spirit of the law. Each factory is given a 
registered number which is printed on the label of the product. 
A very detailed set of regulations for the enforcement of the law 
has been drafted by the Secretary of Agriculture, the Secretary of 
the Treasury and the Secretary of Commerce and Labor. The more 
progressive manufacturers have been quick to see the benefit and 
importance of government inspection and many of them advertise 
the fact of such inspection of their products, while still others 
point out that they observe a standard even higher than that re- 
quired by the government. 

The immediate practical effects of these two Acts have been more 
beneficial than those of any other two laws passed within a genera- 
tion. It is not too much to say that the food and drug manufac- 
turing industries have been revolutionized and that the basis of 
competition in those businesses has been so changed that purity 

1 See the annual report of the Bureau of Animal Industry. 

2 See the annual report of the Bureau of Chemistry. 



THE POWERS OF CONGRESS 195 

of product is now an advantage instead of a commercial handicap. 
The effects on the public health are not easily ascertained but are 
none the less important, in that cleanliness, greater strength of 
nutrition and purity are now insured. 

For a time the Food and Drugs Act failed to protect the public 
against fraudulently labeled patent medicines. Section 8 of the law 
of 1906 provided that a drug or article of food should be considered 
misbranded, and therefore debarred from interstate commerce, if 
the package or label "shall bear any statement, design or device 
regarding such article, or the ingredients or substances contained 
therein, which shall be false or misleading in any particular." 
Although this language seemed clear and definite, it was curiously 
construed by the Supreme Court in a noted case, as meaning only 
false statements as to which substances or ingredients were con- 
tained in the food or drug. The decision in U. S. v. Johnson, 221 
U. S. 488; 191 1, which established this doctrine, threatened to 
curtail seriously the usefulness of the Act. Johnson manufactured 
a "cancerine" remedy and "Dr. Johnson's Mild Combination 
Treatment For Cancer," which was represented as a cure for 
cancer. It was found to be nothing of the sort. When prosecuted, 
the defendant did not deny that the claims made for the "treat- 
ment" were fraudulent but rested his defence on the ground that he 
had made no false statement as to the ingredients contained. 1 

Upon appeal of the case to the Supreme Court, it was ruled that 
Congress, in the Food and Drugs Act, did not intend to pass upon 
the merits or curative powers of any medicine circulating, in inter- 
state commerce. These supposed remedial qualities were matters, 
said the Court, on which there might be the widest difference of 
opinion: Congress accordingly had meant only to prevent the label 
and wrappings from misrepresenting the ingredients which made up 
the drug, but not in any way to regulate the statements which might 
be made as to their curative power. Justice Hughes, in a strong 
dissenting opinion, pointed to the language of Section 8: "any 
statement, design, or device regarding such article" — but the 
majority of the Court held against the government and in favor of 
the company. If the cancerine decision so rendered had been 
allowed to stand, it would have been possible for the proprietors oi 
patent medicine nostrums and fraudulent "cures" to circulate 
their products freely in interstate trade and to continue the long- 
standing abuses and imposition upon the credulous and ignorant. 
In 1912, however, the Act was amended in order to prevent frauds 
of this nature. Clause 3 of Seel ion 8 of the law now declares that a 
drug shall be held to be misbranded and debarred from interstate 

1 As to those ingredients the Supreme Court said in part: "it may be, we ex- 
press no opinion on that matter, that if the present indictment had alleged that 
the contents of the bottle were water, the label so distinctly implied that they 
Were Other than water, as to be a false statement pi fact concerning their p . 
and kind," 



I96 THE NEW AMERICAN GOVERNMENT 

trade, "If its package or label shall bear or contain any statement, 
design, or device regarding the curative or therapeutic effect of such 
article or any of the ingredients or, substances contained therein, 
which is false and fraudulent." This strikes at the root of the 
patent medicine evil by forbidding those misstatements and claims 
of marvellous curative power which in the past have enabled the 
unscrupulous to trade on the credulity and hope of the afflicted. 
A number of important prosecutions have been begun against cer- 
tain widely advertised patent medicines, under this clause, and the 
manufacturers implicated have in most instances admitted their 
guilt and revised their extravagant claims accordingly. This simple 
addition of a dozen words to the Food and Drugs Act by the Sherley 
Amendment of August 23, 19 12, together with the subsequent 
vigorous enforcement of the law, has probably done more to protect 
the public from fraudulent medicines than any other measure that 
could have been taken. 

The Net-Weight Act. — The Food and Drugs law did not prevent 
false statements of quantities contained in packages of food or 
medicine. This custom had meanwhile reached the proportions of a 
general abuse and fraud. A 10% reduction in weight of food or 
medicine packages is simply an increase of 10% in the price of the 
product and no little part of the higher cost of living is due to this 
almost universal practice. In order to meet this situation, Congress 
added to the Food and Drugs Act on March 3, 1913, the provision 
that all packages shipped in interstate commerce shall be plainly 
and conspicuously marked to show the quantity of the contents. 
While it is not an easy matter to enforce this clause owing to the 
natural shrinkage, variation of containing packages and honest 
mistakes in weighing, measuring and counting, yet the effect of the 
measure has already been most salutary and a marked improve- 
ment is noticeable in this important side of interstate trade. 

The Practical Methods of Enforcing the Act. — As the success of 
the Pure Food and Drugs laws depends chiefly on the vigor with 
which the administration enforces them and the funds placed at the 
disposal of the executive for their execution, it is well to examine 
this side of the problem briefly. In the words of the chief of the 
Bureau of Chemistry of the Department of Agriculture, the work of 
the Bureau is directed along three main lines. 

" (a) Regulatory. — The enforcement of the food and drugs act, 
which is designed to prevent the interstate shipment of foods and 
drugs which are unwholesome, or adulterated, or offered for sale 
under misleading labels. The Bureau of Chemistry gives assistance 
to the Insecticide and Fungicide Board by making analyses, hold- 
ing hearings, and collecting samples. 

" (b) Standardizing. — The preparation of specifications for pur- 
chasing supplies, under contract, by the United States Government, 
and testing to see that supplies furnished are in accordance with 
the specifications. 



THE POWERS OF CONGRESS 1 97 

" (c) Investigational. — This work is of two types; the first serves 
more purely regulatory purposes and includes such investigations 
as the search for new forms of sophistication, the development of 
methods for the detection of adulteration, and the discovery of the 
cause and source of contamination in foods. The second type con- 
sists of constructive work looking to the development of new uses, 
sources, and methods of preparation of foods and drugs with refer- 
ence to the conservation of the food supply, the prevention of 
waste, and the utilization of waste by-products. This type of work 
includes necessary investigations in analytical, agricultural, and 
biological chemistry. The two types of investigation merge into 
each other. An investigation undertaken solely for regulatory pur- 
poses often discloses facts which lead to constructive work of great 
importance and vice versa." 

The number of inspectors, however, is only 44 which, in view of 
the immense field to be covered and the importance to the com- 
munity of the work done, is totally inadequate. During a single 
year these 44 men collect over 10,000 samples for examination and 
visit many thousand manufacturing establishments. For econ- 
omy's sake they are concentrated in a few centers, making field 
trips to the territory around them. In addition to the main central 
laboratory, there are now 21 branch laboratories. The scope and 
importance of the inspectors' work may be seen from a short 
recital of some of their ordinary routine duties. At one time they 
pay especial attention to the preparation and shipment of milk from 
those sections which have no local milk inspection service, par- 
ticularly the small towns adjacent to great cities. At another time 
they study the water of those sections in which shellfish are caught 
in large quantities, with a view to detecting and preventing the 
causes of disease. Again they investigate the many attempts made 
to bleach food products such as flour with injurious chemicals and 
stop the practice. Or they find that in the milling industry it has 
become a custom to add screenings and mill refuse to the animal 
foods sold as by-products of the mill. Many illegal shipments of 
such adulterated animal foods have been seized. On another occa- 
sion they find a misbranding of wines and malt liquors, or the 
importation of spurious brandies, or the simple dilution of ethyl 
alcohol to be sold as Russian vodka. The Bureau learns that great 
quantities of Italian tomato sauce and tomato paste arc being 
imported. A representative is sent to Italy to confer with the 
manufacturers there, inducing them to adopt sanitary methods 
which will satisfy the requirements tor importation. The Bureau 
discovers a wide-spread practice of sweating unripe citrus fruits to 
give them the color of maturity. It brings suit in the courts, 
thereby putting an end to the practice. It finds that large quan- 
tities of physicians' supplies, which are marketed direct by the 
manufacturers, were adulterated or misbranded. A special inquiry 

was conducted which also stopped this dangerous practice. 



198 THE NEW AMERICAN GOVERNMENT 

In all this great and varied field of labor the Bureau has per- 
formed a signal service both to the manufacturer and to the com- 
munity at large. Its inspectors have not acted merely as detec- 
tives to spy out violations of the Act and punish the malefactors, 
but have frankly recognized that many illegal practices were 
unintentional, while others resulted from a mistaken commercial 
zeal. They have accordingly admonished, instructed, and advised 
quite as often as they have prosecuted. The shippers of milk have 
been taught greater cleanliness and have been prosecuted only 
when they failed to follow suggestions. The grape juice producers 
have been aided by a field laboratory in which the methods of 
preventing the formation of alcohol are studied and perfected. The 
poultry and egg raisers have been instructed by a model refrigerator 
car showing the best methods of care and preparation of their 
products and especially pointing out the importance of immediate 
cooling of poultry and eggs before storage. The sanitary prepara- 
tion of frozen and dried eggs has been demonstrated. New methods 
of preventing the formation of arsenic and metallic impurities of 
copper, zinc and lead in gelatin have been developed, and in the 
important process of canning an exhaustive study has been made 
of the possibilities of improvement. 

Furthermore the law itself has not been enforced in the courts by 
heavy penalties. The producer, unless he shows a determined and 
persistent spirit of violation, is handled with the greatest leniency 
and is usually allowed to go free of all penalties upon signing a 
bond for the future observance of the law and paying the very 
moderate court costs. The result of this praiseworthy spirit in the 
administration has been a remarkable improvement in food condi- 
tions in all sections of the country and it cannot be doubted a much 
greater benefit would follow an extended and more adequate 
appropriation for the needs of the service. 

In meat inspection and in the Bureau of Animal Industry of the 
Department of Agriculture the need of more funds is even greater. 
The work of meat inspection is seriously hampered by inadequate 
appropriation. In a matter so vital to the public health there can 
be no excuse for the mistaken policy of economy which the national 
legislature has followed towards these bureaus. 

The National Food and Drug Act cannot be interfered with by 
any State statute; on the contrary its authority extends over all 
shipments of food and drugs down to the time when they reach the 
retail purchaser. In McDermott v. Wisconsin, 228 U. S. 115; 1913, 
the State had attempted to follow the early original package deci- 
sions by providing regulations of its own governing the labelling of 
packages placed on sale at retail within the State. While general 
State regulation might have been permissible in this way under the 
former decisions, yet the effect would have been to repeal the 
Federal regulations as to the labels on packages of products which 
bad passed in interstate trade. If Wisconsin could prescribe what 



THE POWERS OF CONGRESS 199 

labels should go on retail packages, then the Federal law requiring 
net weight to be stated on the packages, and requiring the labels to 
contain a statement of the presence of certain harmful drugs, or 
defining misbranding or adulteration, would all have been swept 
away from retail trade and would have been confined solely to the 
labels of the outer or original packages in interstate commerce. 
But these original package labels never reached the customer's 
eye. Congress has therefore insisted that the labels which do come 
to the customer's attention on the retail packages shall be under 
Federal control. In the McDermott case the defendant who was 
prosecuted under a Wisconsin law, claimed that the Congressional 
power was supreme even over such retail labels, while the State 
maintained that after the original package of interstate commerce 
was broken, the State authority became supreme, since the package 
had then entered intrastate trade. The Supreme Court rejected the 
State's contention and upheld the supremacy of the Federal regula- 
tion The decision established in substance the following princi- 
ples-, that as the Federal Act requires articles in interstate commerce 
to be properly labelled, a State cannot require a label which has 
been properly affixed under the national statute to be removed and 
other labels authorized by its own statute to be attached to the 
package containing the article, so long as it remains unsold by the 
importer, whether it be in the original case or not. And that 
the early doctrine of original packages was not intended to limit the 
right of Congress, when it chose to assert it, to keep the channels of 
interstate commerce free from the carriage of injurious or fraud- 
ulently branded articles and to choose appropriate means to that 
end. 

New Problems in the Federal Police Power over Commerce. — 
Can Congress use its regulative power for any purpose that it 
pleases? This broad question has been brought up by the introduc- 
tion of a national child labor bill, providing that the products of 
factories employing children under the age of fourteen should be 
debarred from interstate trade. The measure, originally intro- 
duced by Senator Beveridge, has been more recently urged with 
some insistence. It raises also the question as to how far the Federal 
regulative power may be employed in such a way as to interfere with 
businesses conducted within a State. Two sharply dissident views 
have emerged from the discussion. Senator P. C. Knox in con- 
gressional debates and public addresses ' has pointed out that the 
regulative power was given to Congress for the purpose oi further 
aiding and promoting national trade but not to interfere with the 
internal affairs of a State. He contends that any attempt to carry 
out the latter purpose is beyond the authority oi Congress. " Hut 
it is claimed that as the power to regulate commerce is absolute. 
complete and mainly exclusive in Congress, the right to forbid the 
shipment in interstate trade oi any kind of goods, for any reason, 
1 See Address to Graduating Class, ¥ale Law School, June 24, 100-. 



200 THE NEW AMERICAN GOVERNMENT 

comes within that power. That is to say, under the guise of a 
commercial regulation, not necessary for the promotion or protec- 
tion of commerce, a producing regulation, which Congress could 
not have enacted, may be enforced; or, in other words, Congress can 
deny a person the right to engage in interstate commerce for doing 
that which Congress cannot prohibit him from doing. ... In my 
judgment, the power to regulate commerce between the States does 
not carry within it the power to prohibit commerce, unless the 
prohibition has for its purpose the facilitation, safety or protection 
of commercial intercourse, or the accomplishment of some other 
National purpose. The power to regulate interstate commerce does 
not extend to the laying of an arbitrary embargo upon the lawfully 
produced, harmless products of a State, nor to the right to defeat 
the policy of a State as to its own internal affairs. I concede that 
the National power to regulate interstate commerce carries with 
it the right to prohibit commerce in order to secure equality of 
commercial right, or to prevent restraint of or interference with 
commerce, but not to prohibit the shipment from the State of the 
innocuous products of producers who are pursuing a course sanc- 
tioned by the laws of the State and in no wise in itself interfering 
with interstate commerce." 

The opposite view is represented by Donald Richberg, of the 
New York bar, who sets forth a much broader interpretation of the 
Federal power. He holds that just as Congress has the undoubted 
authority to free interstate trade from such obstacles, hindrances 
and injurious or harmful elements as combinations in restraint 
of trade, unsanitary meats, harmful or fraudulent foods and persons 
or objects transported for immoral purposes, so it has the full power 
to bar out from national commerce the elements of unfair competi- 
tion. One of these is the employment of child labor. In its efforts 
to protect the producer and the whole community from unfair 
competition, Congress has forbidden the formation of monopolies. 
Can it not, in pursuance of the same high purpose, forbid the 
participation in national trade of those who seek to undermine 
competition by equally reprehensible means; namely, the employ- 
ment of children of tender age ? A Child Labor Act was finally 
passed on September i, 1916, and in 1918 in Hammer v. Dagen- 
hart the Supreme Court declared it unconstitutional as a regula- 
tion of production, and therefore an invasion of the State power. 
Congress thereupon in 1919 laid a 10% tax on the profits of 
factories employing children under 14 years of age. 

REFERENCES 

Barnes and Milner: Selected Cases. 

Report &° Regulations Bureau of Animal Industry, Dept. of Agriculture. 

Report & Regulation under Food and Drugs Act, Bureau of Chemistry, Dept. oi 
Agriculture. 

Annual Report: Commissioner of Immigration. 



THE POWERS OF CONGRESS 201 

Address of Senator Philander C. Knox, Yale Law School, 1907. 

F. N. Judson: Regulation of Commerce, 2d Edition, 191 2. 

T. H. Calvert: Regulation of Commerce under the Federal Constitution. 

QUESTIONS 

1. If the Federal Government has no authority over manufactures what 
power has it to pass a pure food law, or a meat inspection act? 

2. Why were such acts passed, in 1906? 

3. Outline the chief features of the food and drugs act. 

4. Explain what is meant by misbranding under the act. 

5. By adulteration. 

6. The Pure Candy Company manufactures bon bons containing brandy. 
It labels the box simply "bon bons." Has the act been violated? Explain. 

7. It colors other bon bons with chrome yellow. Is this legal? Reasons. 

8. A manufacturer labels his product "preserved strawberries." It con- 
tains 60% of strawberries, the balance being squash and apple. Has he violated 
the act? Explain. 

9. A manufacturer of breakfast foods located in Chicago prepares a mixture 
of Minnesota oats and labels it "Edinburgh Scotch Breakfast Oats"; he makes 
another mixture of dried corn flakes with sugar and labels it "Elijah's Manna"; 
a third he makes from a good quality of wheat flour and labels it "Buckwheat 
Brain Builder." He sells these to the trade in various parts of the country. 
Explain fully the legality of each label. 

10. The government prosecutes a drug manufacturer for adulterating his 
camphor sold to the trade. What standard will be used to measure the purity 
of the drug? 

i'li?) Wisconsin passes a law regulating the labels of packages offered for sale 
atYetail within the State. This conflicts with the labels prescribed by the Fed- 
eral Government for goods sold in interstate trade. Which law takes pre- 
cedence on packages exposed for retail sale in Wisconsin? Reasons. 

12. In 191 1, Dr. Quack circulated in interstate trade his Magic Consumption 
Cure. The label and wrapper say nothing of the ingredients but both guarantee 
a sure cure for consumption if the remedy is taken persistently, a teaspoonful 
after each meal. Upon analysis, the cure is found to contain one part of salt 
and ten parts of water. Has the law been violated? Explain fully. 

13. In 1914, Dr. Quack continues his sales of the remedy under the same 
conditions. Can he be prosecuted? Explain fully. 

14. Explain the provisions of the Net-weight Act. 

15. You are about to enter the business of slaughtering and packing of meat 
products for interstate trade. Explain fully the inspections to which your 
business would be subjected by the Federal Government. 

16. Has Congress any authority to regulate morals in connection with inter- 
state trade? 

17. The U. S. law prohibits the circulation of lottery tickets in interstate 
commerce or through the mail. John Doe sends a package of such tickets by 
Parcels Post to another State. When prosecuted he pleads the Fifth Amend- 
ment. Decision of court, with reasons. 

18. He urges in his defence that lottery tickets are not objects of "com- 
merce" in the sense of Section S of Article I. Decide with reasons and cite a 
precedent. 

10.) Can Congress exclude from national commerce, articles which are not 
injurious nor intended for an improper purpose? Reasons. 

20. A manufacturer prepares for interstate shipment, a lot of goods which 
may not circulate in interstate commerce under the law, and leaves them in his 
shipping room, sending meanwhile for the Express Company. Has lie violated 
the act? 

21. The goods are placed on the train for shipment to another State, but 
the train has not yet reached the State boundary, Has the act been violated? 

22. He delivers them to the express company which takes them to 



202 THE NEW AMERICAN GOVERNMENT 

but has not yet placed them on the train. Has any violation of the Act oc- 
curred? 

23. Outline briefly the educational work among manufacturers and other 
producers carried on by the bureau of chemistry. 

QUESTIONS ON IMMIGRATION 

1 . What constitutional authority has Congress over immigration? 

2. Enrico Alfano migrates from Naples to New York. What tax is imposed 
upon him on entrance and from whom is it collected? 

3. Which of the following persons are excluded from the United States 
under the Immigration Act — give the provisions of the act covering each case: 

(a) John McGinniss, an epileptic invalid. 

(b) Mary McGinniss, an idiot. 

(c) Wm. McGinniss, aged 30, who has had several attacks of 

insanity, but is now in possession of a physician's certificate 
stating that he is sane. 

(d) Philip McGinniss, who was insane three years ago but who has 

now a physician's certificate as to sanity. 

(e) Jacob McGinniss, who has no dangerous contagious disease, 

but is blind, friendless, and penniless. 

(f) Michael McGinniss, who has served out a term in prison for 

manslaughter. 

(g) Antonio Bonato, who has been convicted of a trifling mis- 

demeanor in Naples, but has been allowed to go free and his 
passage paid to America by the city of Naples, 
(h) Paolo Lombardi, who has been engaged by the Columbus Coal 
Company to work in its mines and E. Caruso, who has been 
engaged by the Metropolitan Opera Company to sing in 
New York and Philadelphia. 

4. The cost of supporting certain excluded persons is $920. Who pays it? 
Suppose it is not paid as required by law, what can the government do? 

5. What does the act provide as to the way in which they shall be deported. 

6. John Nomunno becomes a pauper and enters the alms house two years 
after his immigration to New York. What does the act provide as to his cost? 

7. Could Congress forbid all immigration for five years? Reasons. 

8. Could it prohibit all immigration permanently? 

9. Explain the Federal Government's special protection to women in inter- 
state travel by the Mann Act of 1910. 

10. Explain fully the constitutional basis of the arguments made by the 
defense in Hoke and Economides v. U. S. 

n. Congress forbids the entrance to this country of certain undesirable 
aliens. Such an alien having lived here for six years goes back to his native 
land for a short time and then seeks to re-enter the United States. Can he be 
legally excluded? 

12. Could Congress constitutionally attack a business which it considers 
immoral, such as stock gambling and speculation, by forbidding the passage 
through the mails or by interstate telegraph or telephone of messages and orders 
for the purchase of stock on exchanges which were not incorporated according 
to certain rules? 

13. Senator X introduces a bill excluding from interstate trade the products 
of factories in which children under 14 are employed. Give the arguments 
for and against its constitutionality and your own views on the subject. 



CHAPTER X 

POWERS OF CONGRESS— Continued 

THEIR RELATION TO STATE POWERS OVER 
COMMERCE 

The Original Rule on State Powers. — Having examined the au- 
thority of Congress over national trade, and having seen that it is 
absolute and unquestioned, we shall now consider how far a State 
government can control commerce. Briefly, it may regulate that 
which is entirely within its own boundaries and may exercise a 
limited control even over interstate trade in certain cases, subject 
to the tacit consent of Congress. Its authority over national com- 
merce has been a matter of gradual growth through a series of im- 
portant Supreme Court decisions, of which a few may be briefly 
mentioned. The first rule established was that no State could inter- 
fere in national trade. The question at issue was the grant by a 
State of a monopoly of steam navigation which, the owner con- 
tended, barred out all other steam vessels from the use of the State 
ports. Fulton and Livingstone, as a reward for their services in 
inventing and perfecting the steamboat, had received from New 
York such a monopoly of steam-navigation in the waters of that 
commonwealth. They sold the right to another person who tried 
to enforce it by preventing all other steamboats from entering 
the ports of New York from other States. The owner of a steam 
vessel plying between New Jersey and New York resisted this 
action and in 1824, in the celebrated case of Gibbons v. Ogden, 9 
Wheaton, 1, the United States Supreme Court decided that no 
State could grant a monopoly affecting interstate trade because 
the Constitution had given Congress the power to regulate that 
trade. The monopoly therefore could only apply to waters entirely 
within the State of New York and not to those which formed ave- 
nues of interstate traffic. A similar ruling was delivered in the 
case of Brown v. Maryland, 12 Wheaton, 410, in 1827. Here the 
State had levied a tax on importers in the form of a business license 
of fifty dollars. The Court held this license unconstitutional in 
that it interfered with importing or foreign commerce. If these 
decisions had stood without further change the States would have 
had no control whatever over national commerce. 

The Rise of State Power. — The entering wedge of State authority 
was driven in the case of Cooley v. The Port Wardens oi Phila- 
delphia, 12 Howard, 299, in 1S51, and a new interpretation was 
given to the commerce clause. The Supreme Court declared that 

203 



204 THE N EW AMERICAN GOVERNMENT 

although Congress had full power of control there were certain 
detail matters of such a local nature that Congress might permit 
the States to regulate them. One of these was the question whether 
pilots were necessary for ships entering and leaving a local port. 
So long as Congress permitted it, a State might require, as Penn- 
sylvania had done for Philadelphia, that all ships coming into the 
local harbor must take on a pilot, for safety, and that this pilot 
must be paid at a fixed rate. The State might even impose a fine 
for the violation of this pilotage rule. Other similar matters of a 
local nature which are subject to State regulation until Congress 
acts, are the placing of harbor buoys, anchorage rules, harbor 
lights, etc. A further extension of State power took place in the 
case of the Escanaba Company v. Chicago, 107 U. S. 678, decided 
in 1882. Here the city of Chicago had provided for the closing 
of certain drawbridges over the Chicago River (a channel of inter- 
state commerce), for ten minutes at a time in order to allow of 
street traffic across the river. The closing of these drawbridges 
interfered with the passage of boats of the Escanaba Company, 
engaged in interstate business, and was accordingly resisted by 
the company in the courts. The Supreme Court decided that 
the two currents of traffic which met at the Chicago River, one 
being the interstate traffic by boat through the river itself, and the 
other being the street traffic of a great city lying on both shores of 
this river, constituted a local question which might best be regulated 
by local ordinances in the absence of any action of Congress. As 
the city of Chicago lay on both sides of the river, it was only natural 
that the municipal government of Chicago, under authority from 
the State, should make such reasonable regulations as would best 
conduce to the forwarding of both the river and street traffic. 
This the city had apparently done by its rule closing the bridges 
every ten minutes. Since Congress had not regulated the matter, 
the rules provided by the city of Chicago were therefore held to 
be justifiable and constitutional even though they directly affected 
the interstate commerce in which the Escanaba Company's boats 
were engaged. Congress by its constitutional authority could at 
any time repeal these rules and supersede them by others of its 
own making. The Act of Congress of 1899 now provides that no 
bridges may be constructed across navigable interstate waterways 
without the express consent of the Federal authorities. 

An excellent summary of the powers of the States as interpreted 
by the Supreme Court is given by Justice Field in Bowman v. 
Chicago Railway Company, 125 U. S. 507; 1888, — "Where the 
subject upon which Congress can act under its commercial power 
is local in its nature or sphere of operation, such as harbor pilotage, 
the improvement of harbors, the establishment of beacons and 
buoys to guide vessels in and out of port, the construction of bridges 
over navigable rivers, the erection of wharves, piers and docks, 
and the like, which can be properly regulated only by special 



THE POWERS OF CONGRESS 205 

provisions adapted to their localities, the State can act until Con- 
gress interferes, and supersedes its authority; but where the sub- 
ject is national in its character, and admits and requires uniformity 
of regulation, affecting alike all the States, such as transportation 
between the States, including the importation of goods from one 
State into another, Congress can alone act upon it and provide the 
needed regulations. The absence of any law of Congress on the 
subject is equivalent to its declaration that commerce in that 
matter shall be free." 

Proper and Improper Uses of the State Power over Interstate 
Trade. — The care which the Court formerly exercised in allowing 
State regulation of local matters which affected national business 
may be seen in the Husen Case. In 1872, Missouri passed a law 
forbidding the driving, or conveying into the State, of any Texas, 
Mexican, or Indian cattle between March 1st and November 1st 
in each year. The ostensible purpose here was to protect the health 
of Missouri cattle from Texas, or Spanish fever. But the Supreme 
Court, in Railroad v. Husen, 95 U. S. 465; 1877, decided that this 
prohibition was too general and absolute; that it did not offer a 
reasonable means of keeping out diseased cattle but rather, through 
eight months of the year, excluded the importation of all, and was 
for that cause an excessive regulation, or prohibition of interstate 
commerce. While a State may enact sanitary laws and for the 
purpose of self-protection establish quarantine and reasonable 
inspection regulations, and prevent persons and animals having 
contagious diseases from entering the State, it cannot, beyond what 
is absolutely necessary for self-protection, interfere with trans- 
portation into or through its territory. 

State Regulations of Safety. — How far may the State go in pro- 
tecting the safety of its people in matters of interstate commerce? 
The general principle now governing this question is that, until 
Congress has acted, a State may intervene even in interstate trade 
to protect the lives and safety of its people, unless its regulation 
is of an unreasonable nature. In New York, New Haven and 
Hartford Railroad v. New York, 165 U. S. 628; 1897, the State had 
passed an Act forbidding the use of coal or wood stoves on passenger 
coaches in the State and had sought to apply this act to the New- 
Haven line. This the company protested, claiming that it was 
engaged in interstate traffic and that its through trains could not 
be interfered with by the State, but must be regulated only by 
Congress under Section S of Article 1. The Supreme Court, how- 
ever, ruled that the State authority when used in this way was 
constitutional; the purpose of the Aet was to prevent the burning 
of coaches in train wrecks, and the consequent loss o\ life and 
property. For such a purpose, the State might, in the absence of 
action by Congress, make reasonable regulations to require the 
railways to use modern heating apparatus K^i a safer nature; and 
the New York Aet was a reasonable rule of this kind which 



206 THE NEW AMERICAN GOVERNMENT 

might well be applied even to interstate trains, until Congress 
acted. 

A similar ruling had already been made in Smith v. Alabama, 124 
U. S. 465; 1888. Here the State had established a Board of Exam- 
iners to license locomotive engineers; it required all engineers to 
pass an eye examination to secure such a license before driving a 
train in the State. A fee of $5.00 was to be paid for the examination 
and the license; persons who were known to be negligent and 
incompetent were disqualified, as were also those who were in- 
toxicated within six hours of going on duty. A penalty of fine 
or imprisonment was visited upon those who violated the Act. 
Smith was an engineer of the Mobile & Ohio Railroad who, it was 
shown, did not drive an intrastate train, but whose run was 
exclusively in interstate commerce; being approximately 60 miles 
within the State of Alabama and over 200 miles in Mississippi. 
For this reason he claimed immunity from the State rule, and 
contended that he could not be required to secure a State license to 
engage in interstate commerce. The Supreme Court upheld the 
State statute and set forth that the purpose of the rule was clearly 
to protect passengers and property from careless and incompetent 
engineers and railway accidents. The fee of $5.00 was not a tax 
on interstate commerce, but was a proper charge for the expense 
of examination and license. The State might apply the require- 
ments above described, even to engineers making an interstate run, 
part of which lay within Alabama, so long as the law was a reason- 
able and proper requirement in the interests of safety. The Act 
was not intended to, nor did it obstruct interstate commerce. It is 
to be observed that the Court would probably have declared the 
State law unconstitutional if it had imposed a heavy license fee, 
or onerous and burdensome restrictions on those who tried to 
secure a license; but as neither of these defects existed, the law was 
allowed to stand as a reasonable statute. 

Again in Patterson v. Kentucky, 97 U. S. 501; 1878, a similar 
principle had been established in another field analogous to inter- 
state commerce. Kentucky had passed an Act regulating the sale of 
illuminating oils in the State and providing that no oil which 
ignited at a temperature below 130 degrees Fahrenheit should be 
offered for sale within the State. All oils were to be inspected and 
the casks branded by a State official, as " standard," or "unsafe." 
Patterson sold an oil which ignited below the standard test and 
which had not been passed by the State inspectors. He claimed 
that the oil was manufactured under a Federal patent and that the 
patent right gave the inventor the privilege of selling his product 
without interference by a State law. He further argued that if a 
State could so interfere with the sale of a patented article, it might 
render valueless the patent and thereby defeat the national laws on 
patent rights. The Supreme Court overruled this contention and 
decided that the State law was a reasonable and proper measure to 



THE POWERS OF CONGRESS 207 

prevent explosions and loss of life and property. A safety measure 
of this nature was not intended to defeat the national patent acts, 
but had the purpose and effect of protecting the local community 
from conditions that would otherwise be intolerable. The Court 
took occasion to point out that the national government had long 
possessed full control over interstate trade, yet the States were 
allowed to protect their people against dangerous conditions 
arising in such commerce while within their borders. "By the 
settled doctrines of this Court the police power extends, at least, to 
the protection of the lives, the health, and the property of the com- 
munity against the injurious exercise by any citizen of his own 
rights. State legislation, strictly and legitimately for police pur- 
poses, does not, in the sense of the Constitution, necessarily in- 
trench upon any authority which has been confided, expressly or 
by implication, to the national government." Speaking of inter- 
state commerce the Court said, "This court has never hesitated by 
the most rigid rules of construction, to guard the commercial power 
of Congress against encroachment in the form or under the guise of 
State regulation, established for the purpose and with the effect of 
destroying or impairing rights secured by the Constitution. It has 
nevertheless, with marked distinctness and uniformity, recognized 
the necessity growing out of the fundamental conditions of civil 
society, of upholding State police regulations which were enacted in 
good faith, and had appropriate and direct connection with that 
protection to life, health, and property, which each State owes to 
her citizens." 

State Laws to Prevent Fraud. — In Plumley v. Massachusetts, 
155 U. S. 461; 1895, the State was allowed to prohibit the sale of 
oleomargarine imitations of butter, colored to represent the genuine 
article, even when such imitations were imported from another 
State and offered for sale in the original 10-lb. packages. This is 
the farthest limit of local regulation of national trade which has 
been permitted by the Court. It was based on what the Court 
considered to be the State's essential right to protect its citizens 
from fraud. The Court did not doubt the healthful qualities of the 
product, but held rather that persons who wished to buy butter 
should not be deceived by another product falsely colored to 
represent butter. "Now, the real object of coloring oleomargarine 
so as to make it look like genuine butter is that it may appear to be 
what it is not, and thus induce unwary purchasers, who do not 
closely scrutinize the label upon the package in which it is con- 
tained, to buy it as and for butter produced from unadulterated 
milk or cream from such milk. The suggestion that oleomargarine 
is artificially colored so as to render it more palatable and attrac- 
tive can only mean that customers are deluded by such coloration. 
into believing that they arc getting genuine butter. It" anyone 
thinks that oleomargarine, not artificially colored so as to cause it to 
look like butter is as palatable or as wholesome for purposes ot" i<\\\ 



208 THE NEW AMERICAN GOVERNMENT 

as pure butter, he is, as already observed, at liberty under the 
statute of Massachusetts to manufacture it in that State or to sell 
it there in such manner as to inform, the customer of its real char- 
acter. He is only forbidden to practice, in such matters, a fraud 
upon the general public. The statute seeks to suppress false 
pretences and to promote fair dealing in the sale of an article of 
food. It compels the sale of oleomargarine for what it really is, by 
preventing its sale for what it is not. Can it be that the Constitu- 
tion of the United States secures to anyone the privilege of manu- 
facturing and selling an article of food in such manner as to induce 
the mass of people to believe that they are buying something which, 
in fact, is wholly different from that which is offered for sale? Does 
the freedom of commerce among the States demand a recognition 
of the right to practice a deception upon the public in the sale of 
any articles, even those that may have become the subject of trade 
in different parts of the country?" There was a strong dissenting 
opinion in this case by three of the Justices who contended vigor- 
ously that the State was interfering with sales in the Original 
packages, a power which only Congress could exert. The decision, 
however, was followed subsequently in all regulations of oleomar- 
garine up to the passage of the Food and Drugs Act of 1906. It is 
still important as showing the State's power over national trade to 
prevent fraud. But where the statute is more extended in its 
language, and excludes from sale within the State all oleomargarine 
(regardless of whether colored to imitate butter or not), the State 
clearly oversteps its authority. This was the ruling in Schollen- 
berger v. Pennsylvania, 171 U. S. 1; 1898. Here the State law pro- 
hibited all manufacture or sale of oleomargarine within the State. 
Schollenberger was a dealer who received a forty-pound tub of the 
product from a manufacturer in Rhode Island, and exposed it for 
sale as an original package. It was properly marked as required 
by the Act of Congress, and was not colored to imitate butter. 
When prosecuted under the Pennsylvania law Schollenberger con- 
tended that the product being a wholesome one, and one recognized 
and regulated by the Federal law, he had a right to deal in it in 
original packages in interstate commerce, so long as he practiced 
no fraud by misrepresenting it, and so long as it was not given a 
deceptive appearance to mislead any prospective purchaser of 
butter. This the Court upheld, declaring that oleomargarine, being 
an article of commerce, could be brought into a State in the original 
package and sold in that package, regardless of State prohibitions, 
so long as it was not deceptive or fraudulent in appearance. The 
essential difference between these two cases is that the Mas- 
sachusetts law prohibited fraudulent sales or sales of an article in- 
tended by its appearance to deceive, while the Pennsylvania Act 
forbade all sales of a certain product, regardless of its wholesome 
quality and genuineness, or absence of deceit and fraud. The 
Massachusetts Law when applied to sales of goods in interstate 



•THE POWERS OP CONGRESS 20Q 

commerce was upheld; while the Pennsylvania Act when so applied 
was declared unconstitutional. These rulings show clearly the 
proper and improper uses of State regulation of Interstate Com- 
merce. 

State Regulations for Public Convenience. — In addition to State 
regulations of health, safety and fraud, which have been upheld as 
constitutional even when they affect interstate commerce, a State 
may also make rules for the public convenience and may promote 
the better service of public utility corporations, even though, in 
so doing, it touches on interstate traffic. This principle is best 
illustrated by two companion cases decided in 1899 and 1900. 
The first was the Lake Shore & Michigan Southern v. Ohio, 173 
U. S. 285; here the legislature of Ohio had passed a law requiring 
railways in the State to stop at least three trains daily, each way, 
at all cities and stations on the lines of the railway with a popula- 
tion of 3,000, or over. The Lake Shore refused to stop one of its 
fastest trains at a suburb of Cleveland which had the required 
population, and the local authorities claimed that, as the town was 
not given three trains daily each way, the railway had violated 
the Act. The company answered that its through train was an 
interstate affair which could not be regulated by the State govern- 
ment and that the local law was therefore unconstitutional as ap- 
plied to trains passing to or from other States. The Supreme 
Court decided, however, that as the company did not furnish ade- 
quate or reasonable train service for the point in question it must 
stop a sufficient number of trains to give such service. The com- 
pany was free to offer three trains daily from its local traffic, if it 
preferred; but failing to do this, it could be required by the State, 
for the convenience of the people, to stop through trains even 
though these latter were engaged in interstate trade. If the com- 
pany had established a sufficient number of local trains, that is, 
three daily, the Court would doubtless have held that the interstate 
schedule could not be interfered with. This decision, therefore, 
establishes simply the rule that a State may require reasonable 
service for its larger towns and villages and that if a company 
fails to provide such service from its local trains, the interstate 
schedule may be called upon. 

The companion case on this point brings out the question very 
clearly. In Cleveland, Cincinnati, Chicago and St. Louis Railway 
v. Illinois, 177 U. S. 514, which was decided the following year, 
the Illinois law required all regular passenger trains each way to 
stop at county seats on their line. The railway already furnished 
four regular trains stopping at the county town in question, Hills- 
boro, and these were sufficient to accommodate all the local traffic. 
The railway also operated a "Knickerbocker Special" from St, 
Louis to New York, passing through Illinois, but not stopping at 
the county seats. The State authorities having demanded that 
this through special should stop at county seats, the company 



2IO THE NEW AMERICAN GOVERNMENT 

contended that such action would interfere with its connections 
and overturn its schedule, which would result in the loss of passenger 
traffic and drive the business to o£her competing railways. In 
deciding the case, the Supreme Court recognized the active com- 
petition between carriers, not only in the comfort, convenience 
and general excellence of through trains; but also in the running 
time of their schedules. It was essential that the interstate schedule 
be free from local interference unless the company was to lose a 
large part of its business to other lines which were not restricted 
in their running time. This was especially true where the local 
train service was adequate to the demands of the county seats. 
A State law regulating through trains, regardless of the interests 
of other States would be a serious burden on national commerce 
and defeat the commerce clause which granted the regulative 
power to Congress. "After all local conditions have been adequately 
met, railways have the legal right to adopt special provisions for 
through traffic, and legislative interference therewith is unreason- 
able and an infringement of the Constitution." In all such cases of 
local regulation it must be clear that the State is not setting up 
an unreasonable obstacle to interstate trade. This element of 
reasonableness is more clearly defined in the Atlantic Coast Line 
v. The Railroad Commissioners of South Carolina, 207 U. S. 328; 
1907. Here the Supreme Court outlined sharply the limits of 
State interference with through trains in interstate commerce. 
The Atlantic Coast Line operated several through trains between 
New York and Tampa, Florida. These made connections with the 
steamers to Havana and were also in active competition with another 
through line to the South. During the winter season, the passenger 
traffic required high speed and high-class accommodations. A fast 
schedule was also required by the mail contracts. Notwithstanding 
these facts, the South Carolina Railroad Commission ordered the 
Coast Line to stop its fastest train each way at Latta, South Caro- 
lina, a hamlet of 453 persons. The railway protested against this 
order, the case came into the courts and eventually to the Supreme 
Court. It was shown in favor of the order, that besides the popu- 
lation of Latta, there were other persons in the surrounding dis- 
tricts which relied on Latta for their train service, amounting in 
all to about 1,200 souls. And it was argued that the convenience 
of this population required the stopping of an additional train and 
that several complaints had arisen because of the railway's failure 
to do so. In favor of the company, however, it was shown that there 
were numerous local trains stopping at Latta and one through 
train daily, each way. It was also possible to take a local train 
to a station twenty miles away, at which the fast train in question 
made a stop. Upon inquiry by the lower court as to the exact 
amount of inconvenience arising from the refusal of the company 
to stop its fastest train at such a small station, one witness replied 
that there were many complaints and a large number of persons 



THE POWERS OF CONGRESS 211 

who wished to take the fast train at Latta; but, being pressed for 
exact figures, he said there were sometimes as many as four in one 
week. Upon this complete statement of facts, the Supreme Court 
ruled that, as long as the hamlet was well supplied with local train 
service and was already given one through train stop, a further 
order by the State to stop the fastest interstate train on the road 
would be an unwarrantable and unconstitutional interference with 
such traffic, under Section 8 of Article I. These cases show clearly 
the Court's willingness to ascertain all the facts of train service 
and accommodations, and upon the basis of these facts to judge 
of the reasonableness of a State rule which affects an interstate 
train. 

State Wage Laws Applied to Interstate Companies. — In Erie 
Railroad v. John Williams, 233 U. S. 685; 1914, the State of New 
York was allowed to require the semi-monthly payment of the 
wages of railway employes, even when this applied to interstate 
railways employing persons wholly or partly within the State. The 
New York Act of 1907-8 was passed with the purpose of protecting 
employes from the practice of withholding wages for a consider- 
able time. It aimed to secure a reasonable frequency of payment, 
and to this end it provided that railway and certain other com- 
panies must pay their employes in cash, that no part of the pay- 
ment should be in store orders, and that payment should be made 
semi-monthly. Williams was the Factory Inspector charged with 
the enforcement of the Act. The Erie Company claimed that the 
interstate law could not apply to those of its employes who were 
engaged in duties connected with interstate commerce, and par- 
ticularly not to those who were employed partly in New York and 
partly in other States. The company contended that such an ap- 
plication of the law would violate the commerce clause of the Con- 
stitution by interfering with the Federal power over interstate 
trade. The Supreme Court rejected the company's contention, 
and upheld the law on the ground that such a burden as it imposed 
upon interstate commerce was negligible and indirect. This 
slight burden, the Court commented, might be removed at any 
time if Congress chose to regulate the matter, but meanwhile the 
State might properly protect the interest of its residents by legis- 
lating on this question. "It is not necessary to review and com- 
pare the cases in which this court has pointed out the difference 
between a direct and indirect burden of state legislation upon inter- 
state commerce, or the power of the states in the absence of regu- 
lation by Congress. It is enough to say in the present ease that 
Congress has not acted, and there is not, therefore, that impedi- 
ment to the law of the state; nor is there prohibition in the char- 
acter of the burden. The effect of the provision is merely adminis- 
trative, and so far as it affects interstate commerce, it ^loes so 
indirectly." 

State Prohibition Laws and Interstate Business. Some of the 



212 THE NEW AMERICAN GOVERNMENT 

most interesting constitutional questions in this field have arisen 
from the liquor laws of the States when applied to shipments coming 
from other commonwealths. They have raised the problem — • 
Where is the dividing line between national and State trade? 
Much depends upon the precise moment at which the large volume 
of goods flowing into a State ceases to be subject to the control of 
Congress and comes under the jurisdiction of the State government. 
An interesting example of this came up in 1890 in the case of Leisy 
v. Hardin, 135 U. S. 100; 1890. The State of Iowa having adopted 
a prohibition law which forbade the sale of intoxicating liquors, and 
Leisy having brought beer in sealed packages into the State, the 
beer was seized under the Iowa State law. Leisy, the owner, con- 
tended that the beer was still a part of interstate commerce, and as 
such it was subject, not to State law, but to the Federal control. 
He claimed that the State action in seizing the beer was unconstitu- 
tional, because the State had no right to prohibit interstate com- 
merce. The Supreme Court upheld the owner in this contention 
and declared that so long as goods transported from one State to 
another were still in the "original package" or bundle, unsold, in 
which they had been shipped into the State, they remained a part 
of interstate commerce and as such were subject only to Federal, not 
State, regulation. This is known as "the original package deci- 
sion" because it adopts as the dividing line between State and 
interstate commerce the package of shipment. When this package 
or bundle is sold or broken or part of its contents taken out, it ceases 
to be the "original" package and immediately becomes part of 
State commerce and therefore subject to State regulation. Until 
this takes place it remains in national commerce and cannot be 
prohibited by a State. 

The Wilson Act. — Naturally this decision was regarded as a 
defeat for the prohibition States and they immediately pressed for a 
Federal law which would remedy the situation by conferring upon 
each commonwealth the authority to regulate, regardless of the 
original package. To this end Congress in the same year, 1890, 
passed the Wilson Act providing that intoxicating liquors shipped 
into any State for use there, "shall upon arrival in such State or 
Territory, be subjected to the operation and effect of the laws of 
such State or Territory enacted in the exercise of its police pow- 
ers, . . . and shall not be exempt therefrom by reason of being 
introduced therein in original packages or otherwise." 

This law, passed in pursuance of the strong prohibition sentiment 
in the West, remained on the statute books for twenty-three years, 
during which time it was freely evaded with impunity. It raised 
some serious constitutional questions between the national and 
State governments, in deciding which, the Court established impor- 
tant new principles. The first problem was — can Congress in this 
way allow the States to regulate commerce in such a manner as to 
interfere with the free flow of national trade from State to State? 



THE POWERS OF CONGRESS 213 

This question was presented in the case of Rahrer, 140 U. S. 545; 
189 1. Rahrer was a liquor dealer in Topeka, Kansas, prohibition 
territory, acting as agent for a Missouri firm. He received from 
Missouri and sold in the original package a pony keg of beer and a 
pint of whiskey. Upon being arrested under the State prohibition 
law, he appealed from the decision of the Kansas courts to the 
national Supreme Court, and claimed immunity from conviction 
and punishment. He admitted having received the liquor from 
another State and having sold it in Kansas in violation of the 
State prohibition law. He further admitted that under the Wilson 
Act this would be a punishable offence, since the liquor having been 
received by him, it had "arrived within the State" and was there- 
fore subject to the State police regulation under the Wilson law. 
But, claimed Rahrer, the Wilson Act itself is unconstitutional, in 
that it permits a State to interfere with national commerce. Arti- 
cle I, Section I, of the Constitution declares that — "All legislative 
power herein granted shall be vested in a Congress" The un- 
doubted meaning of this clause is that Congress, and Congress 
only, shall exercise the legislative power of the United States, 
subject to the President's veto. Any attempt by Congress to give 
or grant or delegate away to the States the legislative authority 
which the Constitution has conferred upon Congress itself, is 
therefore a violation of the Constitution, and is void. Does the 
Wilson Act commit this fault? In order to prove that it did Rahrer 
in his petition set forth that there were two kinds of interstate 
trade — first — local matters which the States in the absence of 
Congressional regulation might themselves provide for as we have 
already seen, but the second class was national not local in its 
nature, and could therefore be regulated only by Congress, and as 
the court had said in Bowman v. Chicago Railway Company, 121 
U. S. 465; 1888, if Congress did not regulate this national type of 
trade, which necessarily required uniformity of treatment, then it 
must be understood that Congress wished this trade to be free from 
regulation and no State action was allowed. Pursuing this thought 
one step farther, Rahrer contended that under no circumstances 
could Congress give away to the States its control over this national 
class of trade which required uniformity, for in doing so, it would 
be delegating its legislative authority, and thereby violating the 
Constitution. The decision of the Supreme Court rendered by 
Chief Justice Fuller was that Congress could certainly not delegate 
its power but that the Wilson Act was not such a delegation of 
power. 

"No reason is perceived why, if Congress chooses to provide that 
certain designated subjects of interstate commerce shall be gov- 
erned by a rule which divests them oi that character at an earlier 
period of time than would otherwise be the ease, it is not within its 
competency to do so." . . . "Congress did not use terms o\ per- 
mission to the State to act, but simply removed an impediment to 



214 THE NEW AMERICAN GOVERNMENT 

the enforcement of the State laws in respect to imported packages 
in their original condition, created by the absence of a specific 
utterance on its part. It imparted ho power to the State not then 
possessed, but allowed imported property to fall at once upon 
arrival within the local jurisdiction." Accordingly the Wilson Act 
was constitutional and the conviction under the State law was 
upheld. 

The next question under the Act was — when have intoxicating 
liquors "arrived within the State?" This problem was solved by 
the decision in Rhodes v. Iowa, 170 U. S. 412; 1898. The Iowa law 
prohibits the transportation within the State, of intoxicating liquors 
without a permit or certificate from the county auditor. Rhodes 
was a station-agent of a railway company, and he knowingly re- 
ceived and cared for a shipment of intoxicating liquors sent from 
outside the State to a consignee in Iowa. He had not yet delivered 
the goods but had taken them from the train and stored them in 
the warehouse on the station platform. He had, therefore, assisted 
in their transportation. At this point, and before delivery they 
were seized by a constable, and Rhodes was fined $100 for violation 
of the State prohibition law. Upon appeal to the U. S. Supreme 
Court the question presented was whether under the Wilson Act 
the goods had "arrived within the State," and had therefore be- 
come subject to the State laws. The Court had already, in Bow- 
man v. Chicago Railway Company, held that the Federal authority 
was exclusive so long as the goods were in course of shipment or in 
actual transit, that is, a State prohibition or police law could not 
take effect until the interstate shipment had been completed. The 
Federal Government could regulate them up to this point, but not 
the States. The Wilson Act, the court held, had simply made the 
State law apply one stage earlier, by divesting the commerce of its 
interstate nature when it "arrived." "Arrived" cannot mean at 
the State boundary for this would prohibit any transportation into 
the State. Yet the rest of the Wilson Act clearly shows that it was 
intended to apply to goods which were "transported into" a State. 
What was the purpose of the Wilson Act? Clearly not to authorize 
the States to stop interstate trains at their boundaries, but rather 
to remedy the Leisy v. Hardin decision of 1890. The emphasis, 
therefore, ruled the court, is to be placed upon the repeal of the 
"original package" part of that decision — shipments shall not be 
exempt from State laws by reason of having been introduced in 
original packages or otherwise, — showing that the goods were 
to be "introduced," not stopped at the boundary. As a result of 
this reasoning, the court concluded that "arrived" meant having 
reached the consignee, and that up to that point the goods had not 
"arrived," but were still in interstate commerce, were under the 
protection of the United States government, and were accordingly 
not subject to State regulation. The package having never been 
delivered te the consignee, but rather seized by the constable 



THE POWERS OF CONGRESS 215 

before delivery, the goods in question had therefore not arrived 
within the State, and Rhodes could not be held for having violated 
the State law, since he handled the goods before their arrival and 
not after. This decision has been severely criticized in all the 
prohibition States, and it has been claimed that the Supreme Court 
should have taken the plain meaning of the Act and interpreted 
"arrived" to mean "reached the boundary," in order that each 
State might effectually prohibit the entrance into its territory of 
an article which it considered both obnoxious and dangerous. 
Undoubtedly the decision did open the way for a general violation 
of the State prohibitory laws. Notable instances of this are shown 
in the Kentucky Local Option Act of 1902, as interpreted by the 
Supreme Court in Adams Express Company v. Kentucky, 206 U. S. 
129; 1907. The Kentucky law provided that shipments of intox- 
icating liquors to be paid for on delivery, commonly called C. O. D. 
shipments, into any local option county, city or town, should be 
deemed sales of such articles at the place where such money was 
paid, or the goods delivered. Such sales were forbidden. In spite 
of this Act a package of one gallon of whiskey was shipped from 
Cincinnati, Ohio, to East Bernstadt, Kentucky, to G. W. Meece. 
Meece had not ordered the whiskey, and testified that he was not 
expecting any, but was informed that it was at the company's 
office, consigned to him. He accordingly requested the company's 
agent to hold it until the following Saturday, when he would call 
and pay for it. This he did. The company was prosecuted under 
the Kentucky Act, but appealed to the Supreme Court. It was 
held that an express company was a common carrier; that it was its 
duty to accept any recognized article of commerce in one State and 
ship it to another; that the company could be, and in fact had been 
in the past, forced to accept such shipments, and that intoxicating 
liquors being heretofore a recognized article of commerce, the com- 
pany had a legal right to engage in such shipment from State to 
State. As a part of this right it could also legally carry goods which 
had been paid for or for which the payment was to be made, upon 
delivery. It was a customary part of the express company's busi- 
ness to deliver C. O. D. in all parts of the United States, and the 
company in shipping liquors C. O. D. and collecting the price of 
the same in prohibition territory, was not "selling" goods in such 
territory. Finally, following the decision in Rhodes' case, the Court 
held that until Meece, the consignee, actually received the goods, the 
interstate shipment had not been completed, that is, the goods had 
not arrived within the State, and were therefore not yet subject to 
the State prohibition law. A similar decision was rendered in 
another prosecution of the Adams Company, in Express Company 
v. Kentucky, 214 U. S. 21S; 1000, where the company's agent 
knowingly delivered intoxicating liquors to an inebriate and was 
exempted from prosecution under the State law on the ground that 
the liquors had been shipped from another State. 



2l6 THE NEW AMERICAN GOVERNMENT 

Meanwhile, the prohibition sentiment had been growing steadily 
stronger. The area of the United States subject to local option 
laws had become larger than that in which the sale of liquor was 
allowed, and the Democratic party having secured a majority in 
two successive elections, the decision to amend the Wilson Act swept 
all before it. In February, 1913, the Webb Bill was passed, providing 
that the interstate transportation of intoxicants into any State in 
violation of its police laws, is prohibited. The bill was vetoed by 
the President on the ground of unconstitutionality, both President 
Taft and Attorney-General Wickersham holding that Congress could 
not delegate to the States the power to banish interstate trade in 
intoxicating liquors; but both Houses immediately passed the bill 
over the President's veto. The intended effect of the Act is to allow 
the States to stop and seize any shipment of intoxicating liquors 
which crosses their boundaries in violation of their police laws. The 
reasoning in favor of the law which seems strong, is that Congress 
has always allowed the States to protect themselves against disease, 
contamination and other dangers, even though these dangers exist 
in interstate commerce. A State, for example, may establish a quar- 
antine at its boundaries to prevent the entrance from other States 
of persons with a dangerous contagious disease. Congress may sup- 
plant these State quarantines whenever it wishes, but it has thus 
far allowed them to exist, despite their regulative effect on inter- 
state commerce. How much more then can Congress allow the 
States to protect their people against the ravages of drunkenness 
even though, in so doing, they may prevent the entrance of intoxicat- 
ing liquor, an article which in the judgment of their legislators is 
dangerous in the extreme. If the act is held to be constitutional 
however, it may open the way for a host of other laws submitting 
interstate trade to State interference — a result that must prove most 
harmful. 

State Regulation of Correspondence Schools. — In the recent 
case of International Text Book Company v. Pigg, 217 U. S. 91 ; 1910, 
the Court attempted to set a limit to State regulation of national 
trade. The International Correspondence School through its text 
book company, employed agents in the various States to solicit 
scholars and to collect money due for courses and for text books. 
The Kansas agent of the company who maintained an office within 
the State at his own expense was required by the State to pay the 
usual license fee exacted from foreign corporations transacting busi- 
ness within the State, but he refused to do so. Later, Pigg, a student, 
having failed to pay his tuition fees, was sued by the agent of the 
company. He defended his non-payment of dues on the ground 
that the company's agent had failed to pay the legal license fee to 
the State, and was therefore transacting business in the State in 
violation of the law. On appeal to the United States Supreme Court, 
a decision was rendered against Pigg, in favor of the company, on 
the important ground that its business was interstate commerce. 



THE POWERS OF CONGRESS 217 

This opinion marks a noteworthy step in the decisions in that it 
holds business intercourse by mail from State to State to be free 
from State licensing, inasmuch as it is interstate commerce. The 
Court ruled that the transfer of lessons and lesson papers, the im- 
parting of knowledge, the return of corrected papers, and the inter- 
change of communications necessary thereto all formed a species 
of intercourse between States which was in every sense a form of 
national commerce, and, as such, was not subject to interference 
by a State. Certain other regulations by the States have been ap- 
proved, even where they affected interstate commerce, when they 
were of a local nature, such as health quarantine for both animals 
and persons to prevent the introduction of epidemic diseases from 
other States; local rules governing the lights to be displayed by 
vessels in a harbor, — The frigate Gray v. the ship Fraser, 21 Howard, 
184; 1859. The construction of a dam across a small creek, even 
though that creek was sometimes entered by a sloop coming from 
another State, — Wilson v. The Marsh Co., 2 Peters, 245, etc. This 
line of division between State and national regulation is further 
considered in the chapters on the Police Power and Constitutional 
Protections of Business. 

Federal versus State Regulation. — The consideration of these 
decisions, which have been selected from various fields of regulation, 
seems to point toward the remedy for our present conflicting State 
rules, viz., a more extended uniform regulation by Congress over 
every part of the field of national trade which is now in danger of 
State control. So long as Congress abstains from setting up its own 
rules over national business the States will necessarily be forced by 
local public opinion to attempt regulation. And State regulation 
means conflict and confusion, with serious hindrance of interstate 
trade. This is doubly important in the case of carriers such as the 
railways, the express companies, and the telephone and telegraph 
companies, which are themselves the very means of transmitting 
commerce. In all of the decisions which we have considered, the 
Court where it permitted a State regulation to stand has expressly 
declared that it could be superseded at any moment by a national 
act on the subject. Contrary to the popular opinion on this ques- 
tion, we need not less legislation but more Federal laws with less 
State regulation of affairs which are in their nature national. 

REFERENCES 

Barnes and Milner: Selected Cases. 
Judson: Interstate Commerce, Second Edition. 
Calvert: Regulation of Commerce under the Constitution, 
WiLLOUGiiB y : Constitutional Law of the United States. 

QUESTIONS 

1. What is the practical importance to business men of the dividing line 
between State and interstate trade? 

2. Have the States anv authority whatever over interstate commerce? 



2l8 THE NEW AMERICAN GOVERNMENT 

3. John Doe is given a monopoly of aerial navigation in the State of Illinois 
as a recognition of his services in perfecting the aeroplane. Richard Roe flies 
into the State from Indiana and is sued by J6hn Doe under the rights granted in 
his monopoly. Decide the case with reasons. Cite an authority. 

4. California makes rules governing pilotage in the harbor of San Francisco. 
The captain of a vessel entering from another State refuses to obey these rules 
on the ground that he is engaged in interstate commerce, and that until Congress 
acts, no State has authority to regulate the matter. Decide the case with rea- 
sons and cite a precedent. 

5. Explain the general principle laid down in Bowman v. Chicago R. R. 
Co., on the extent of State power over interstate trade. 

6. Can a State bar out from its territory persons or animals afflicted with a 
dangerous contagious disease? 

7. Can it forbid the use of stoves which it considers dangerous, on all 
trains within the State, and apply this prohibition to trains coming in from an- 
other Commonwealth? Reasons. 

8. A State requires all persons acting as locomotive engineers on any trains 
in the State to pass a test for color blindness for which test a fee of $5 is charged. 
Will this Act apply to locomotive drivers on interstate trains coming into the 
State? Reasons. 

9. Massachusetts attempts to forbid the sale of oleomargarine prepared in 
imitation of butter. Can the oleo manufacturers of other States sell their goods 
in Massachusetts in violation of the Act? Reasons. 

10. Can a State regulate interstate railway trains for the convenience of a 
citizen? 

11. Ohio requires all railways in the State to furnish a given number of 
trains daily to all towns on their routes with a population of 3,000 or over. Will 
such a regulation apply to an interstate line running through Ohio? 

12. Would the law be valid if it provided that all trains on all lines must be 
stopped at all county seats on the line? Reasons. 

13. The railroad commission of a State orders the stopping of a through 
express on an interstate railway at a small town of one thousand inhabitants. 
The railway claims that this will interfere with the speed of its service and drive 
patrons to another competing line, also that the town in question has abundant 
railway facilities. Decide the constitutional question at issue with reasons and 
cite an authority. 

14. What is an "original package " of interstate commerce? 

15. What was the importance of this package in the Leisy Hardin decision? 

16. What were the chief provisions of the Wilson Act and why was it passed? 

17. How was it possible to evade the State prohibition laws under the 
Wilson Act? 

18. Explain the court interpretation which made these evasions possible. 

19. What is the chief provision of the Webb Act and how does it affect such 
evasions? 

20. What was Attorney General Wickersham's view of its constitutionality 
in 1913? 

2 1 . Frame an argument in favor of its constitutionality. 

22. In violation of the State law, an Express Company delivers liquor sent 
from Boston in C. O. D. shipment, to John Doe of Portland, which he had not 
ordered. The company is convicted, and appeals to the U. S. Supreme Court. 
What would be decided under the Webb Act? 

23. Can the Kansas agent of a correspondence school situated in another 
State be compelled to take out a local license and pay a fee for the privilege of 
transacting business in Kansas? Reasons. 

24. What are your impressions as to the effect of State regulations of inter- 
state business? 



CHAPTER XI 

POWERS OF CONGRESS— Continued 
THE POSTAL POWER 

The Work of the Post Office Department. — Of all the govern- 
ment departments, that which touches the people most closely 
is undoubtedly the post office. Its branches reach out to every 
hamlet of the land, its employees number 286,000, its receipts total 
$266,000,000 yearly, its expenditures $265,000,000. This entire 
establishment with all its important activity is based upon one short 
clause in Section 8, Article I of the Constitution which gives to Con- 
gress the power " to establish post offices and post roads." The term 
"to establish" is a very broad one. It includes the designation as 
postal routes of certain roads, railways and shipping lines, the power 
to make contracts with the railways, steamships, and other carriers 
for the transport of the mails, and without doubt it would also give 
a constitutional authority for the erection or purchase of telegraph 
and telephone lines if such were considered necessary, just as the 
government now builds and controls post offices, pneumatic postal 
tubes, etc. 

The post office is not merely a means of carrying letters. On the 
contrary it is a gigantic machine whose energies may be turned in 
such a direction as to serve materially the business progress of the 
country. From this larger viewpoint let us regard some of the chief 
problems which the Department is now successfully solving. 

1. Postal Savings Bank. — All the principal countries of the 
world have adopted a plan by which every post office becomes a 
savings bank. The result has been to stimulate wonderfully the 
habits of thrift and economy among the people and to render their 
funds useful for important government undertakings. After much 
opposition Congress on June 25, 19 10, passed a law providing a 
postal savings plan. The system is under the general control of 
a Board of Trustees consisting of the Postmaster-General the 
Secretary of the Treasury and the Attorney General. This Board 
designates which post offices may act as savings depositories, and 
at such places any person ten years of age or over may open one 
account to a maximum amount of $500. Deposits may be made in 
amounts varying from $1 to $.100, and in order to encourage the 
saving of smaller amounts it is provided that savings cards with 
adhesive stamps known as postal savings stamps may be pur- 
chased at the post office, each card and each stamp representing 
ten cents. When the stamps amount to $1 they may lie deposited 

219 



220 THE NEW AMERICAN GOVERNMENT 

with the card and are then destroyed by the postmaster and 
credited in the account of the depositor. The funds of the system 
are deposited in local banks and draw from such banks 2% per cent 
interest. Thirty per cent of such funds may be invested in bonds 
or other securities of the United States. The depositor is paid 
2 per cent interest and the government guarantees the payment of 
the deposits. Against strong opposition from the banks this system 
has been extended into all parts of the country. At the end of the 
first year of business, December, 1911, the division had 162,000 
depositors and $10,600,000 deposits. At the end of two and one- 
half years in June, 1913, there were 331,000 depositors with 
$33,800,000. The officers of the Postal Savings Division have 
taken steps to popularize the plan and its facilities still further, by 
calling it to the attention of the public through the local post- 
masters. 

The Parcel Post. — For many years there has existed a strong 
demand for a postal express service similar to that of other nations, 
by which packages of moderate size may be sent through the 
mails. Such a plan found little support in Congress because of the 
strong opposition of the express companies and the small country 
storekeepers, the latter fearing that their business would be ham- 
pered or destroyed by the mail-order stores in the large cities. 
The leading express companies had made a remarkable profit on 
the small package business and their rates were abnormally high, 
so that the natural current of small trade between different parts of 
the country was clogged or entirely stopped by the expense of 
transmission. In a law suit over a question of taxation it was 
testified by the agents of the four largest companies that their 
annual earnings in one State, Ohio, equalled many times the 
property which they owned in that State. The company with the 
smallest earnings had a property investment of $42,000 on which 
it earned $280,000 in one year. This highly artificial condition 
was maintained for many decades after other nations had estab- 
lished cheap and efficient postal express service. At last, in the 
political changes of the years 19 10 and 19 12 the influences which 
blocked the new system were finally weakened and on August 24, 
19 1 2, Congress passed an act providing for a modern Parcel Post. 
This law went into effect on January 1, 19 13, and has wrought a 
revolution in the conditions of interstate retail trade. The country 
is divided into zones based on distance from the point of sending, 
and the charges vary according to these distance zones. The 
article sent may be insured up to $50 on payment of a small fee. 
The results of the first year of the service were so satisfactory, 
even at the low rates charged, that a reduction in rates and an 
increase of the size of the package which might be carried was 
made; the weight limit is now 50 lbs. for the first and second zones 
and 20 lbs. for the others, and books have been added to the parcels 
accepted. The Third Assistant Postmaster General whose jurisdic- 



THE POWERS OF CONGRESS 221 

tion includes the parcel service in his report for 1913, says of the 
growth in business: — 

"The usefulness of the parcel post as a ready, cheap, and efficient 
means of transportation is realized by the public more and more 
each day. Its numerous features and advantages are being utilized 
in a surprisingly large number of ways, and there is almost no limit 
to the variety of articles transported. The consumer is placed in 
direct touch with the farmer and producer whose products can now 
be conveniently and quickly obtained at a very reasonable charge 
for transportation and handling, thereby assuring the freshest 
fruits, vegetables, eggs, butter, and other necessities, for the lowest 
possible price and opening the way to the lowering of the high cost 
of living, which has caused so much concern in recent years. As a 
saver of time to those who in the past were compelled to leave their 
accustomed duties in order to get articles which now are brought to 
their doors by parcel post, the system has proven a boon indeed. 
The fact that the service is universal, extending to every city, 
town and village of the United States and its possessions, and 
covering a field vastly greater than that of any other transportation 
agency, at once makes it the ideal system for carrying on the small 
commerce of the Nation. The usefulness of the system was greatly 
enlarged by the addition, on July 1, 19 13, of a collect-on-delivery 
service, and it is now possible for one to send an article by parcel 
post for repairs and then have it returned, insured against loss, the 
charges for the repairs to be paid upon delivery of the article. 
Furthermore, by utilizing the special-delivery feature of the postal 
service the forwarding and return of the article can be expedited to 
the fullest extent. The advantages and accomplishments of the 
parcel post have not only been direct, but indirect as well, for the 
competition created by it has caused other transportation agencies 
to increase their limits of free delivery in many districts, improve 
their service in other respects, and decrease their charges in many 
instances." 

Marketing by Mail. — In 1914 the first steps were taken in a plan 
to bring the farmer and the consumer into direct relations through 
the Department. A list of farmers was prepared by local, rural 
postmasters, giving the kind of produce and the quantity which 
each would supply at regular intervals. These lists were furnished 
to the large city postmasters who in turn distributed them to the 
prospective customers in the city, upon application. The fanner 
and his customer having made satisfactory arrangements, the 
produce was then forwarded by parcel post. The possibilities of this 
system seem most promising and it has already been extended to 
several Large cities. 

Fraud Orders. — The Postmaster General has authority to ex- 
clude from the mails all fraudulent, illegal or obscene matter. 
This important power has given rise to the celebrated "Fraud 
Order" which is an administrative decree issued against those 



222 THE NEW AMERICAN GOVERNMENT 

firms who are proven to be engaged in a fraudulent business. It 
excludes their circulars, letters, etc., from the mails. The power is 
a drastic one and is frequently resisted by impostors and others 
who are detected in attempts to defraud the public by advertising 
methods. In Degge v. Hitchcock, 233 U. S. 639; 1913, Degge and 
the Wellington Development Company had been shown by evi- 
dence adduced before the Postmaster General to be engaged in a 
fraudulent land scheme. Notice was given to Degge and to the 
company and a formal hearing was held. The charges were found 
to be true, and an order was issued directing the Postmaster at 
Boulder, Colorado, not to deliver to Degge or to his corporation 
the mail addressed to them, but to return all such letters to the 
sender with the word — "fraudulent" plainly stamped on the 
envelope. Degge and his corporation thereupon filed a suit in 
the Federal court asking that a complete record be certified to the 
court by the Postmaster in order that a judicial decision should be 
made on the order — to this end he applied for writ of certiorari. 
This was denied by the Supreme Court on several grounds, the 
strongest being, that the Courts will always refuse to interfere with 
the action of administrative officials, unless some clearly illegal 
or inequitable official performance is shown. In such case the 
proper remedy is by a writ of injunction or mandamus. 

As Degge was unable to show any illegality on the part of the 
officers, and as the writ of certiorari is never otherwise issued 
to government officials to interfere with their official duties, the 
action of the Postmaster General was upheld. 

Administrative Organization. — The organization and work of 
the department deserve special notice. Thus far we have paid 
little attention to the administrative framework of the depart- 
ments, since in most respects they are similar and present few 
features of interest. In view of the intimate relation of the Post 
Office with the people, the magnitude of its operations, and the care 
with which its administrative machinery has been worked out, we 
shall examine this structure in some detail, taking it as an example 
of departmental methods. The Postmaster-General, who presides 
over the Department, has four assistants, each controlling certain 
definite groups of bureaus, divisions and offices. All grades of 
work, even the most important, are conducted by the chiefs of these 
bureaus and offices and are then if necessary referred for approval 
to that Assistant Postmaster-General who exercises jurisdiction 
over the bureau. That official then approves or disapproves, 
usually by initialling the papers presented, and passes on the most 
important affairs prepared, for approval by the Postmaster-General. 
The latter is naturally obliged in most cases to rely upon the rec- 
ommendations of his assistants. The following outline gives some 
notion of the method of organizing the work of the Department. 

First Assistant Postmaster-General. 

Division of Salary and Allowances. 



THE POWERS OE CONGRESS 223 

Division of Post Office Supplies. 

Division of Money Orders. 

Division of Dead Letter Office. 

Division of Correspondence. 

Of these the most important is the Division of Salary and Allow- 
ances, which has charge of the annual readjustment of postmasters' 
salaries, allowances for clerk hire, rent, fuel, light, advertising, etc. 
The head of this Division recommends action in each case and 
while his recommendation may be modified or may not be accepted 
by the First Assistant, yet in practice it is usually adopted. The 
importance of this power may be understood when it is known that 
the expenditures of the Division in 19 13 exceeded $79,000,000. 
There is always some danger of abuse of this power, as was illus- 
trated by an investigation made some years ago, in which a regular 
system of selling salary increases was discovered. According to 
the report of the Fourth Assistant Postmaster-General who directed 
the investigation, the clerks and other employes who desired in- 
creases of salary often paid in advance of these increases. Such 
payments could not be made openly with safety, so the employes 
in question purchased "stock" in various companies officered or 
owned by their superiors, a large part of the proceeds presumably 
going to the officials who recommended the increase in pay. In 
the thorough house-cleaning which followed this exposure the 
Division was reorganized and has now become an efficient means of 
controlling, systematizing and keeping down useless expenditures. 

The Second Assistant Postmaster -General. 

Railway Adjustment. 

Contracts. 

Inspection. 

Mail Equipment. 

Railway Mail Service. 

Foreign Mails. 

These all have to do with the transportation of the mails. Of 
them all the most interesting is probably the railway mail service. 
This Division has charge of the travelling post offices all over the 
United States, whether in trolley cars, railway cars or steamboats. 
The sorting of mail while in transit is done by the most highly 
trained and efficient clerks in the national service; the large through 
trains on the railway systems of the country often carry a double 
force of clerks who work in shifts, under high pressure, opening the 
sacks as the latter are thrown into the cars, sorting the mail and 
distributing it among a large number of bags ranged along the 
walls of the cars, and completing each lot by the time the various 
destinations along the route are reached. In order to do this each 
clerk must usually bo familiar with the names oi [,200 to :o,ooo 
post offices and their locations, together with the respective routes 
to which they belong. In the foreign mails carried on the ocean 
Steamships there are also travelling post offices with a double force 



224 TH E NEW AMERICAN GOVERNMENT 

of clerks, American and foreign. The Division of Railway Ad- 
justment has charge of the arrangements for the railway transporta- 
tion of mails — expending over $35,000,000 annually for this pur- 
pose. The national territory is divided into districts and in each 
district contracts are made with the railways for the transporta- 
tion required. These contracts are based on the weight of the 
mails which is determined once every four years in each district. 
The powers of the other divisions are sufficiently explained by their 
names. 

The Third Assistant Postmaster-General has charge of the general 
finances of the Department, including: 

Post Office Treasuries. 

Stamp Supplies. 

Postmasters' Accounts. 

Classification. 

Registry. 

Redemption. 

Files and Records. 

Postal Card Agent. , 

Stamped Envelope Agent. 

Stamp Agent. 

The Fourth Assistant Postmaster-General directs matters relating 
to the personnel of the service and to the free delivery of mails; 
these are grouped as follows: 

Division of Appointments. 

Division of Bonds and Commissions. 

Division of Inspectors and Mail Depredations. 

Free Delivery Division, including city, rural and special delivery 
branches. 

The first three divisions are the most important, having charge 
of the personnel and the maintenance of its efficiency and honesty. 
In the Division of Appointments all papers referring to the ap- 
pointment of the 74,000 postmasters in the United States are 
briefed and filed for the consideration of the Fourth Assistant, the 
Postmaster-General and the President. The establishment and dis- 
continuance of post offices and the complaints against postmasters 
are also referred to this Division. 

The Division of Inspectors and Mail Depredations maintains a 
highly skilled corps of inspectors distributed through fifteen in- 
spection districts which cover the United States and its dependen- 
cies. Their duties are to examine on the spot the accounts of post- 
masters, investigate all complaints, accidents to the mails, robbery 
and other interference with the business of the Department. In 
the course of this work they are obliged to vary their activities 
through a wide range of occupations from accountant to detective. 
It is largely through the efforts of this Division that all the more 
important irregularities in recent years were unearthed. These 
irregularities show not only the need of a larger force of inspectors, 









THE POWERS OF CONGRESS 225 

but also the necessity of a more thorough and careful utilization 
of their reports. 

The Division of Free Delivery is under the direction of a General 
Superintendent, who retains immediate control of the subject of 
special delivery, but delegates to two subordinate superintendents 
the branches of city delivery and rural delivery respectively. The 
city free delivery service was established on July 1, 1863, in 66 
cities with 685 carriers. It has now been extended to 1,032 cities 
with 20,000 carriers. The rural free delivery system which was 
established on 44 routes in 1897 and has since grown to include 
2,200 routes, marks the greatest advance of our postal system 
since the Civil War. It has been opposed in some sections because 
it tends to reduce the number of fourth-class post offices and thereby 
also the number of political appointments open to party workers, 
but to the masses of the farming population it has proved a great 
boon and the demand for the establishment of new routes far 
exceeds the available appropriations. 

Newer Problems. — 1. The Magazine Rates. — All magazines and 
periodical publications are carried in the mails as second-class matter 
on which the charge is one cent per pound. The government pays 
the railways much more than this to carry such matter. One-half 
or more of the weight of a magazine, and all the profit, are in the 
advertising pages. It is the advertising which causes the unusual 
cost of carriage. This expense has been sharply criticized by many 
who contend that the post office should pay its own way and should 
be run as a business enterprise. But by means of this second-class 
rate the low-priced magazines representing many million copies 
weekly and monthly have been enabled to reach out through the 
country until the people are provided in this way with a cheap 
weekly review of current events, fiction, popular science, etc. It 
has been calculated that although we buy fewer books proportion- 
ately than any civilized people except Russia, we read many times 
more magazines than any other nation. So small is the margin of 
profit on each copy of these magazines than an increase of a cent 
or two per pound in the postage rates would put most of them out 
of business. Such a charge would be a serious loss to the public 
and would be a step backward in our national progress. An increase 
in the rate has been resisted thus far, but a compromise by which 
the advertising pages will pay more, seems probable. 

2. One-Cent Letter Postage.— An influential section of the bus- 
iness world is now discussing the possibility oi a one-cent rate 
for letters. The contention is that if the magazines were charged 
the higher rate which in justice they should pay, there would be 
such a large surplus in the postal department as to allow oi a re- 
duction to one cent in the rate on letters. This would be a great 
boon to the business community. It is claimed that the two cent 
letter rate now yields an actual surplus which is eaten up by the 
deficit on magazine postage. The magazine publishers however 



226 THE NEW AMERICAN GOVERNMENT 

contend that their advertising pages originate a large number 
of inquiries and correspondence a't the letter rate and that no 
real economy would be effected by the change in rates. 

3. The Post Telegraph. — A government ownership and operation 
of the telegraph has been frequently proposed with a view to cheap- 
ening the cost to the public. Strong arguments are adduced on 
each side, the chief grounds in favor being lower rates and the suc- 
cess of foreign governments in this field; while against the plan, 
the alleged lower efficiency and slowness of transmission in foreign 
systems are urged together with the general danger of Socialism. 
A committee appointed by the Postmaster to investigate the sub- 
ject, reported in 19 13 in favor of government management of both 
telegraph and telephone and urged that the post offices be used 
for this purpose in order to effect economies in management. 

Bankruptcy. — The protection of business men against fraudulent 
bankrupts and debtors is one of the difficult problems confronting 
the National Government. Section 8, Article I, gives Congress the 
power to pass "Uniform Laws on the subject of Bankruptcies 
throughout the United States." Trade between the States has 
grown to such a point that it is difficult, if not impossible, for the 
creditors of a firm doing business in several commonwealths to 
protect their interests under all the varying State laws. For this 
reason the power to establish a uniform law was wisely given to 
Congress. For many years this power was not exercised, and as 
some regulation was necessary the States themselves passed bank- 
ruptcy acts. In 1867, a Federal law was enacted by Congress which 
superseded the State rules. But in 1878, the Federal law was 
repealed and the former State laws once more became valid. Finally 
in 1898, in response to the general demand of business interests, 
Congress again passed a law regulating bankruptcy, which was 
amended in 1901, 1903 and 19 10, and the State laws were once 
more superseded by a uniform national rule. 

These changes in the law are interesting, not only as they affect 
bankruptcy, but as they show the supremacy of and the need for 
national legislation on those subjects which are given to the control 
of Congress. They illustrate the rule that where the Constitution 
has granted to Congress a power which, however, Congress does 
not see fit to exercise, the State governments may generally issue 
regulative acts of their own on the subject; these acts are valid 
and binding until Congress exerts its power to regulate, when the 
State laws are superseded by the Federal Act. Should Congress 
at any time repeal its laws, the State regulations again become valid. 

The United States Bankruptcy Act, as amended in 19 10 provides 
that the Federal District and Territorial courts of the United 
States shall have jurisdiction over bankruptcy. Upon a petition 
being filed by creditors in a Federal court asking that a debtor be 
declared bankrupt, the court summons the defendant, and invites 
his creditors to prove their claims under the usual legal forms; 



THE POWERS OF CONGRESS 227 

a jury trial may be granted if the court so decides. An application 
or petition for involuntary bankruptcy is granted against a debtor 
when he commits any of the following acts of bankruptcy: — if 
he conveys, transfers, removes any part of his property with intent 
to hinder, delay or defraud his creditors; 

Transfers while insolvent any portion of his property to certain 
creditors with the intent to grant them a preference over other 
creditors; 

Allows, while insolvent, any creditor to secure preference by 
legal proceedings; 

Makes a general assignment for the benefit of his creditors or 
applies for a receiver or trustee in insolvency, or where such a 
receiver or trustee has been appointed under the law; 

Admits in writing his inability to pay his debts and his willing- 
ness to be adjudged a bankrupt; a person or corporation may also 
be adjudged an involuntary bankrupt upon default of payment 
after an impartial trial. After the court has considered the applica- 
cation of the creditors and the debtor's rejoinder, it either rejects 
the application and allows the debtor to continue, as before, in 
control of his own affairs, or it finds him to be bankrupt and ap- 
points a referee and a trustee to manage his property. The work of 
the referee is to find and recommend to the court a solution of the 
whole problem so as to incur as little loss as possible for both sides. 
He takes charge of the proceedings, receives the claims, makes up 
a list of the assets, and in general administers the estate of the 
bankrupt. The trustee receives the property under the direction 
of the referee and of the Court, collects and reduces to money the 
assets of the estate and disburses them, making a final account or 
report, and pays the dividends as declared by the referee. Both 
referee and trustee are paid partly in a fixed sum and partly in a 
percentage of the bankrupt's estate. The Court calls meetings of 
the creditors when necessary for the presentation and proof of 
their claims and for the approval of any compromise or composi- 
tion which may be offered. 

The Act also fixes an order of priority of claims against the 
estate and provides that any bankrupt who conceals his assets or 
makes a fraudulent statement concerning them may be punished. 
After the proceedings have been closed a motion may be made for 
the discharge of the bankrupt. If the Court decides favorably on 
this motion, the bankrupt may then be legally freed from further 
responsibility for his debts, except: — taxes, claims for property 
which he has secured by false pretences, debts for willful or mali- 
cious injuries or alimony for the support of his wife or child or other 
criminal penalties, those debts which have not been duly listed 
in time for proof during the proceedings oi bankruptcy, unless the 
creditor had notice oi the proceedings, and finally those debts 

which were created by fraud, embezzlement or defalcation while 

acting in a position of trust. 



228 THE NEW AMERICAN GOVERNMENT 

These provisions of the law have had a strong, helpful influence 
in the protection of both creditors and debtors, but further govern- 
ment supervision is needed to shield the creditor from certain 
notorious abuses. It has become customary for fraudulent debtors 
to set up as wholesale or retail merchants, usually in the form of a 
partnership or trading company, to pay promptly for their goods 
until they have established a commercial rating, and then suddenly 
to buy large consignments on credit from many different firms, 
to ship their goods from their stores to distant points where they 
are sold at auction, while the firm suddenly declares itself insolvent 
and either " loses " its books or burns them. The members profess 
complete ignorance of the causes of their failure, and are usually 
found to have no personal assets when bankruptcy proceedings 
commence. Hitherto this practice has been combatted by the 
National Association of Credit Men, but most creditors prefer not 
to " throw good money after bad," and will often refuse to prose- 
cute or to pay the expense of a thorough investigation unless the 
loss is a heavy one and the proof of fraud is clear. As long as the 
initiative and the cost of detecting fraudulent debtors and restoring 
stolen property depends entirely upon the private creditor, there 
must always be a standing invitation to dishonesty in such a 
system. The only remedy is a complete control of fraudulent 
bankruptcies by the Federal Government, and a sufficiently large 
national appropriation to cover the detection of such crimes and 
the recovery of the sums involved. Such a plan would effectively 
discourage the systematic bankruptcy frauds now practiced, and 
would offer to all creditors a much-needed protection. 

One of the difficulties yet to be overcome is in the administration 
of the bankruptcy act. The law itself is excellent in purpose and 
scope but it has been hampered by the appointment of incapable 
referees. In the event of a fraudulent bankruptcy, all the chances 
of escape favor the bankrupt; he may plan for months, or in some 
cases years ahead, to defeat the law and in such cases it is difficult 
if not impossible to detect the well-laid plans for concealment of 
assets or their transfer to other members of the conspiracy. 1 The 

1 The following is a typical case reported in the Bulletin of National Associa- 
tion of Credit Men, November, 1913. Sam. L and Sarah L , his wife, 

operate separate stores in a western city. Sarah L fails with total liabilities 

of $35,000 widely distributed among various creditors in the northwest. One of 
the creditors, with a claim of $700 suspects fraud and communicates with the 
others, asking that an investigation be made and that the consent of the creditors 
be not given to any discharge or settlement until the claims of all are satisfied 
in full. The other creditors answer that undoubtedly the case is fraudulent but 
that there is no proof whatever obtainable and that it would be useless to spend 
further funds; they advise that a settlement of 25c on the dollar be accepted. 
This the $700 creditor refuses. He employs an attorney of ability who puts 
detectives on the case and the following facts are soon discovered: 

Sarah L has been conducting a series of cut-price sales in many instances 

at figures below what the goods could be purchased for; shortly before her failure 
she sends a large part of her stock to her husband's store, where it is packed in 



THE POWERS OF CONGRESS 229 

remedy for this condition of affairs is a greater care in the selection 
and appointment of referees in bankruptcy by the Federal judges. 
Requests to this effect have been made by the Credit Men's Associa- 
tion, to the members of the District Courts throughout the country. 
There is also need for a larger staff of postal inspectors to make 
possible an immediate and thorough investigation of this elusive 
and demoralizing practice. A closer co-operation between govern- 
ment agents and the credit men of the country would also do much 
to bring the whole problem to a solution. 

REFERENCES 

Annual Report of the Postmaster -General — see especially those for 1911, 1912, 
and 1913. 

Special Report of the Postmaster-General of IQ04 on Irregularities in the Postal 
Service. This report shows the practical aspects of administrative methods and 
organization. 

U. S. Bankruptcy of i8q8 with Amendments to iqio. Washington, Government 
Printing Office, 1910. 

Bulletin (monthly) of the National Credit Men's Association. 

Collier : Bankruptcy, 10th Edition. 

QUESTIONS— THE POSTAL POWER 

1. Cite and explain the constitutional clause governing the postal power, 
and show by illustration the meaning of "establish " as used in this clause. 

2. Explain the general work of the Post Office, and give some idea of its 
magnitude and its particular relations to the people. 

3. Resolved that the Post Office should confine itself to the transmission of 
letters. Defend either side of this question, showing the advantages and dis- 
advantages of other activities. 

4. A foreigner asks you how the postal savings bank is managed, and its 
general regulations. Explain. 

5. Why was the Parcel Post opposed, and why adopted? What is its pres- 
ent usefulness? 

6. Resolved that the Post Office can assist in reducing the cost of marketing. 
Defend either side of this question. 

7. What is a fraud order? 

8. A company engaged in a fraudulent business finds that the circulars 
which it sends out are being returned to it marked "fraudulent." It protests 
on the grounds that the circulars are its own property which it has a right to 
send through the mails, or to dispose of as it pleases-, under the 5th Amendment. 
Cite the 5th Amendment, and explain what the Court would decide as to the 
rights of the company and why. 

9. An immoral or fraudulent publication or letter is otTered for transmission 
through the mail. Explain fully the exact authority of the postal officials over 
this matter. 

10. Prepare a report showing the general administrative organization of the 
Post Office Department, and contrast its organization with that of your county 
government. Which is the more effective form of organization and why? 

trunks and sent northward to a point above Seattle. Here it is stored in a 
warehouse for several months and later repacked in large shipping cast, and 
sent back to her husband's store where it is placed on sale. A portion is also 
sent to the Stores of her brothers-in-law and there sold. Indictments are found 
against Sarah L — and her husband and brothers-in-law, charging her with 
perjury and all with conspiracy to conceal her assets and defraud the creditors. 
The men are convicted ami Sarah L - is yet to be re -tried on the perjury charge. 



■ 



230 THE NEW AMERICAN GOVERNMENT 

11. Resolved some increase should be made in the rates charged for trans- 
porting magazines through the mails. Defend either side of the question. 

12. Resolved that it is constitutional for the Post Office to practice and 
operate the large interstate telephone and telegraph lines of the country. De- 
fend either side of the question. 

13. Resolved that it is advisable for the Government to purchase and operate 
the interstate telephone systems of the United States. Support either side of 
this question. 

QUESTIONS— BANKRUPTCY 

1. What is the exact authority of Congress over Bankruptcy? If Congress 
did not pass a bankruptcy law could each State do so? 

2. Resolved that Congress should leave the regulation of bankruptcy to 
state legislation. Defend the negative. 

3. Why is a bankruptcy law necessary? 

4. Explain the difference between voluntary and involuntary bankruptcy 
under the Federal law. 

5. How may an insolvent firm become a voluntary bankrupt under the 
Federal Act? 

6. You have a claim against John Doe & Company, and you receive infor- 
mation that he is transferring his assets to his wife. What steps can you take? 
Explain fully. 

7. Explain and illustrate why the bankruptcy law is so easily evaded. 

8. Resolved that it is better financial policy for the creditor not to push a 
criminal prosecution of a fraudulent debtor. Defend either side of this question. 

9. Explain the practical value and work of such bodies as the National 
Credit Men's Association, in the enforcement of the Bankruptcy Act. 

10. Point out some of the weaknesses in the administration of the Act, and 
show how they could be remedied. 



CHAPTER XII 

THE POWERS OF CONGRESS— Continued 
THE WAR POWER 

Legal Basis of the Power. — Although the war power of Congress 
now seldom occupies the minds of Americans, it was at first re- 
garded as deserving of the greatest attention; more space is de- 
voted to it in Section 8 of Article I than to any other authority. 
Seven clauses are required to convey the grant: — 

Congress shall have power to 

Declare war, 

Raise and support armies, 

Provide and maintain a navy, 

Make rules for the government of the land and naval forces, 

Provide for calling forth the militia, 

Provide for organizing, arming and disciplining the militia, 

Exercise exclusive legislation over forts, magazines, arsenals and 
dockyards. 

Declarations of War. — As we contemplate the vast extent of the 
authority conferred on Congress by these clauses, a number of 
questions arise, which can best be answered by a brief review of 
precedents. How is war declared? The usual method is a simple 
resolution passed by both Houses and signed by the President, 
declaring that a state of war exists between the United States and 
the nation in question. A declaration of war between modern 
nations usually allows three days in which merchant vessels of the 
enemy must leave the ports of the country making the declaration, 
otherwise such vessels are liable to capture. Contrary to prevalent 
belief, the declaration of war may be and often is made after the 
war itself has begun. This occurred in the Japanese-Russian War 
of 1904, when the naval hostilities opened, by surprise, on the night 
of February eighth, while the declaration followed on the tenth of 
that month. The purpose of Japan in delaying the declaration was 
to strike while the Russian naval force was divided into two de- 
tached squadrons. 1 

1 Declaration of War by Japan. — The following declaration was made on 
February 10, 1Q04. "We, by the Grace of Heaven, the Emperor o\ Japan, 
seated on the Throne occupied by the dynasty from time immemorial, ^\o hereby 

make proclamation to all our loyal and brave subjects as follows: 

"We hereby declare war against Russia and we command our army and navy 

to carry on hostilities against her in obedience to duty and with all their strength, 
and we also command our competent authorities to make every effort in pursu- 
ance of their duties and in accordance with all the means within the limits of the 

*3* 



232 THE NEW AMERICAN GOVERNMENT 

Declarations in the European War. — How important the delay 
in declaring war may be, is well shown by the great European con- 
flict. Upon the outbreak of hostilities between Austria and Serbia, 
Russia let it be known that she would not tolerate an Austrian 
occupation of Serbian territory, and she began to mobilize part of 
her forces to support this position. Then began a remarkable 
series of attempts by the Great Powers to open the war without 
formal declarations, each seeking to show that the other had taken 
the offensive. Both the Triple Alliance of Germany, Austria, 
Italy, and the Triple Entente of England, France and Russia, were 
avowedly defensive. The leaders in each of these two leagues felt 
that any aggressive, offensive act on their part would give the other 
members of the league an opportunity to refrain from joining in the 
war. Consequently each Power sought to take up a defensive 
position so that when attacked it might call upon its allies. This 
explains the curious reluctance to make a formal declaration of 
war. Germany in particular was placed in a position where she 
must choose between a defensive attitude in the hope of winning 
Italian support and English neutrality if war broke out, or the un- 
doubted advantages of a quick and surprising offensive in pursuance 
of her long prepared and carefully worked out plan of attack. She 
chose the latter and lost the former. On August 1st she sent a 
twelve hours' ultimatum to Russia to stop mobilizing and that 
night declared war on Russia and invaded Luxemburg on the French 
frontier. This was an act of war on France, but the French scru- 
pulously refrained from making any formal declaration in return. 
Thereupon Germany invaded Belgium, another overt act against 
the French, and on August 3d formally declared war on the 
Republic. This vigorous German offensive at once brought a 
declaration of neutrality from Italy, and the careful French diplo- 
macy reaped its reward on August 4th in a declaration of war by 
England based on the attacks made by Germany on her western 
neighbors. Simultaneously came the formal French declaration of 
a state of war, carefully presented as a defensive proclamation. 
Germany's choice of a vigorous attack and surprise on her western 
neighbors undoubtedly gave her a remarkable military advantage. 
On the other hand, the French success in scrupulously preserving a 
defensive attitude afforded Italy the desired substantial ground for 
refusing to enter the war, and gave the British Government the 
support of public opinion in coming to the rescue of its ally. 

The Spanish-American War. — In our war with Spain an unusual 
and interesting variation occurred in declaring the opening of 
hostilities. Congress first passed on April 20, 1898, a joint resolu- 
tion calling on Spain to withdraw from Cuba. " Whereas the 
abhorrent conditions which have existed for more than three years 
in the Island of Cuba, so near our own borders, have shocked the 

law of nations." Then follow several clauses explanatory of the causes of the 
war. 



THE POWERS OF CONGRESS 233 

moral sense of the people of the United States, have been a disgrace 
to Christian civilization, culminating, as they have, in the destruc- 
tion of a United States battleship, with 265 of its crew and officers, 
while on a friendly visit in the harbor of Havana, and cannot 
longer be endured, as has been set forth by the President of the 
United States in his message to Congress of April 11, 1898, upon 
which the action of Congress was invited: Therefore, Resolved by 
the Senate and the House of Representatives of the United States of 
America, in Congress assembled, First, That the people of the Island 
of Cuba are and of right ought to be free and independent. Second, 
That r is the duty of the United States to demand, and the govern- 
ment of the United States does hereby demand, that the Govern- 
ment of Spain at once relinquish its authority and government in 
the Island of Cuba, and withdraw its land and naval forces from 
Cuba and Cuban waters. Third, That the President of the United 
States be, and he hereby is, directed and empowered to use the en- 
tire land and naval forces of the United States, and to call into the 
actual service of the United States the militia of the several States, 
to such extent as may be necessary to carry these resolutions into 
effect. Fourth, That the United States hereby disclaims any 
disposition or intention to exercise sovereignty, jurisdiction, or 
control over said Island except for the pacification thereof, and 
asserts its determination, when that is accomplished, to leave the 
government and control of the Island to the people." 

This demand amounted to an ultimatum and the Spanish Court 
never received it, but immediately upon the passage of the resolu- 
tion by Congress broke off diplomatic communication with the 
United States and recalled the Spanish minister. The hostilities 
therefore began on the following day, April 21st, although no formal 
declaration of war had been made at that time. The declaration 
itself was passed by Congress on April 25th and is to be found in the 
Public Laws of the United States of America, passed at the second 
session of the fifty-fifth Congress, 1897-1898, Chapter 1S9. "An 
act declaring that war exists between the U. S. of America and the 
Kingdom of Spain. Be it enacted by the Senate and House of 
Representatives of the United States of America in Congress assem- 
bled, Fiist. — That war be, and the same is hereby declared to exist, 
and that war has existed since the 21st day of April, 1898, including 
said day, between the United States of America and the Kingdom of 
Spain. 

"Second. That the President of the United States be, and he 
hereby is, directed and empowered to use the entire land and naval 
forces of the United States, and to call into actual service of the 
United States the militia o\ the several states, to such extend as 
may be necessary to carry this Act into effect." 

The last step in the declaration oi war is its public proclamation 
by the President and the notification to foreign powers by our 
diplomatic representatives abroad. This proclamation i< usually a 



234 THE NEW AMERICAN GOVERNMENT 

simple announcement or recital of the resolution passed by Con- 
gress. 

Military Maintenance. — How does Congress raise and support 
armies and provide and maintain a navy? The action taken on 
these points is not as simple as it seems; it consists of a series of 
laws providing for the organization of both branches of the service, 
and especially an annual appropriation act. Under the Constitu- 
tion an army appropriation bill may not cover a period of more 
than two years (Section 8, Article I). The origin of this provision 
is the fear of a military dictatorship; if the funds for the army are 
granted only for short periods, the army cannot make itself inde- 
pendent of the government, and it is difficult if not impossible for a 
military leader to establish his authority in defiance of Congress. 
This provision is taken from the British Act of Settlement which 
limited army appropriations in a similar way. The provision does 
not apply to the navy appropriations because no danger was 
feared from that quarter. The army and navy expenses have 
steadily grown until they now reach astonishing figures. 

In IQ14 they were as follows: 

Military, $125,000,000; 

Naval, $139,000,000. 

The entire expenses of the government, exclusive of payments on 
the public debt and postal service were $680,000,000. In other 
words, in time of peace over one-third of the total ordinary cost 
of the national government is due to our military and naval estab- 
lishments. The cost of pensions is not included in this figure. 
They amount to $170,000,000 annually. 

Like all other large appropriations the army bill has " riders " 
attached to it, — provisions which are really separate bills but which, 
in order to increase their chances of passage are moved as " amend- 
ments" to the army measure. In this way important questions of 
military and national policy are often determined by special clauses 
in the army appropriation. So in the bill of 1903 the entire general 
staff of the army was reorganized, in the bill of 1901 the President 
was given absolute sway over the government of the Philippines and 
the so-called "Piatt Amendment" in 1901 provided that the 
American military forces should not be withdrawn from Cuba until 
the Cuban Constitutional Convention agreed to certain important 
articles governing the relations of the United States to that Island. 1 

1 Piatt Amendment to the Army Appropriation Act Approved March 2, 
1901. — That in fulfillment of the declaration contained in the joint resolution ap- 
proved April twentieth, eighteen hundred and ninety-eight, "For the recognition 
of the independence of the people of Cuba, demanding that the Government of 
Spain relinquish its authority and government in the island of Cuba, and to with- 
draw its land and naval forces from Cuba and Cuban waters, and directing the 
President of the United States to use the land and naval forces of the United 
States to carry these resolutions into effect," the President is hereby authorized 
to "leave the government and control of the island of Cuba to its people" so 
soon as a government shall have been established in said island under a constitu- 



THE POWERS OF CONGRESS 235 

Army Administration. — In all genuinely representative govern- 
ments the problem of successful military administration has re- 
mained unsolved. It differs from the management of civil affairs 
in that the test of efficiency comes only in times of great crisis. 

tion which, either as a part thereof or in an ordinance appended thereto, shall 
define the future relations of the United States with Cuba, substantially as 
follows: 



That the government of Cuba shall never enter into any treaty or other com- 
pact with any foreign power or powers which will impair or tend to impair the 
independence of Cuba, nor in any manner authorize or permit any foreign power 
or powers to obtain by colonization or for military or naval purposes or other- 
wise, lodgment in or control over any portion of said island. 

II 

That said government shall not assume or contract any public debt, to pay 
the interest upon which, and to make reasoxiable sinking fund provision for the 
ultimate discharge of which, the ordinary revenues of the island, after defraying 
the current expenses of government shall be inadequate. 

Ill 

That the government of Cuba consents that the United States may exercise 
the right to intervene for the preservation of Cuban independence, the main- 
tainence of a government adequate for the protection of life, property and 
individual liberty, and for discharging the obligations with respect to Cuba 
imposed by the treaty of Paris on the United States, now to be assumed and 
undertaken by the government of Cuba. 

IV 

That all Acts of the United States in Cuba during its military occupancy 
thereof are ratified and validated, and all lawful rights acquired thereunder shall 
be maintained and protected. 



That the government of Cuba will execute, and as far as necessary extend, 
the plans already devised or other plans to be mutually agreed upon, for the 
sanitation of the cities of the island, to the end that a recurrence of epidemic and 
infectious diseases may be prevented, thereby assuring protection to the people 
and commerce of Cuba, as well as to the commerce of the southern ports of the 
United States and the people residing therein. 

VI 

That tne Isles of Pines shall be omitted from the proposed constitutional 
boundaries of Cuba, the title thereto being left to future adjustment by treat ■ 

VII 

That to enable the United States to maintain the independence of Cuba, and 
to protect the people thereof, as well as for its own defense, the government of 
Cuba will sell or lease to the United States lands necessary for coaling or naval 
stations at certain specified points, to be agreed upon with the President oi the 
United States. 

VIII 

That by way of further assurance the government of Cuba will embody the 
foregoing provisions in a permanent treaty with the United States. 



2$6 THE NEW AMERICAN GOVERNMENT 

A modern army may be built up on principles which are radically 
wrong but its inefficiency will remain undiscovered until the declara- 
tion of war is made. All the great wars of the last century have 
led to fundamental changes in the methods of army organization 
and equipment on the part of one or both contestants. Similarly 
the war of 1898 caused a reorganization of our military system. 
During the earliest stages of that struggle the various administra- 
tive bureaus whose duty it was to house, transport, equip, feed and 
supply the army, worked so entirely at loggerheads with each other 
and finally broke down so completely that the most serious discom- 
fort, disease and mortality among the troops and a paralysis of the 
efforts of the military commanders resulted. The difficulties of the 
situation were aggravated by the appointment, through political 
influence, of large numbers of inexperienced men from civil life to 
positions in the various supply bureaus of the volunteer service. 
Harmful as this influence was in weakening the army and serious as 
were the frauds perpetrated on the government by contractors of 
food supplies, the fundamental weakness of the whole system lay 
in the lack of "team-work" between the quartermaster's bureau, 
having charge of the accommodations for troops, the commissary of 
subsistence, having food and supplies in charge, the paymaster's 
bureau, the medical corps and the commissary of transportation, 
having control of the movement and transport of troops. Other 
bureaus which enjoyed a like independent organization were those 
of the Signal Service, Ordnance, Adjutant General, etc. The 
delays and loss of life in the war snowed the disastrous possibilities 
of such a group of independent bureaus and proved that the unity 
of purpose necessary to provision the army and maintain it in a 
state of comfort and efficiency, was lacking. 

Popular indignation wreaked itself upon the Secretary of War, 
but not all the inefficiency was justly chargeable to the Secretary of 
that time. In March, 1902, the new Secretary, Mr. Root, speaking 
before the Senate Committee on Military Affairs said: "... I 
believe that with the organization as it was at the outbreak of the 
war with Spain and is now, the outbreak of any war would irretriev- 
ably ruin any man who was Secretary of War. I think the organiza- 
tion is such that it is impossible that successful results shall be 
produced until they have been worked out by most painful and expen- 
sive experience." The efforts of any Secretary to establish harmony 
and co-operation between the bureaus were foredoomed to failure, 
since no one man could decide the multitude of technical questions 
constantly arising. Add to this the fact that before the war began 
no adequate plans for the movement and maintenance of troops 

These eight clauses of the Piatt Amendment have been the basis of an Amer- 
ican supervision and control over the welfare of Cuba and have provided for 
American intervention in certain crises. It was under those provisions and at 
the request of President Palma that the American forces were again landed in 
Cuba in 1907, remaining until the Republic elected a new President. 



THE POWERS OF CONGRESS 237 

had been drawn up and it will be seen that the confusion, mismanage- 
ment and loss of life which occurred on American soil even before our 
troops reached Cuba arose principally from the lack of unity and 
system. 

The General Staff. — To remedy the condition just described the 
War Department prepared two important measures which have 
since become law: First, the consolidation of the Quartermaster's, 
Commissary's and Paymaster's bureaus into a Bureau of Supply 
with a staff officer at its head, and Second, the establishment of a 
General Staff with a responsible chief. The consolidation of the 
supply bureaus is aimed to secure system and order in providing 
the vital necessaries for the army's existence and activity; the estab- 
lishment of a General Staff is intended for the same purpose and 
also to work out in advance suitable plans of campaign for the guid- 
ance of the commanding generals in the field. These changes are in 
substance taken from European practice and from our own experi- 
ence. The armies of France, Germany, Japan and Russia are pre- 
sided over by carefully organized central authorities, the head of 
which is in each case an experienced general officer. Obviously the 
need of efficient management is the same in all wars. Even to the 
layman it is evident that in all things pertaining to the discipline 
and control of troops there must be unity of purpose; what the lay- 
man does not see, but what is equally true is that the same prin- 
ciple muift be followed in devising plans of campaign or in supply- 
ing food, transportation, and equipment. 

Napoleon's famous maxim that "an army travels on its stomach" 
points to a vital problem of military management. We are accus- 
tomed to think that the chief work of the army is to fight, but no 
army, even in war, spends a tithe of its time in battle. Its energy is 
devoted to preparation and to maneuvering for position. It is 
precisely in this endless labor of preparation that the machinery of 
administration plays its part. It is in efficient management, rather 
than individual fighting ability, that the superiority of an army 
now consists. The General Staff with its centralized administrative 
powers is intended to bring about this change in the American army. 
Under the law of 1903 the Staff consists of a variable number of offi- 
cers of different ranks, taken from all arms of the service, infantry, 
cavalry, artillery and engineers, and assigned for a limited time to 
staff duty. The Chief of Staff is the head of this organization and 
in reality of the entire army. The duties of the Staff cover every 
phase of administration and in war time include even the command 
and discipline of the troops. The Staff must above all draft plans of 
campaign, offensive and defensive, against foreign powers with whom 
we may come into conflict. In order to do this it must provide in 
detail for the arming, uniforming, equipping, provisioning and trans- 
portation of prospective armies in ease o\ a possible war. In this 
work the German staff is the recognized model oi efficiency. In its 
mobilization of 1014, each soldier was provided with a new uniform 



238 THE NEW AMERICAN GOVERNMENT 

and outfit, and a card showing the rendezvous of his company. The 
owners of horses, motor cars and yehicles of whatever description 
were registered and their property taken over immediately for the 
purposes of mobilization. The number of men, horses, etc., which 
could be accommodated in freight cars, was recorded in advance, so 
that without the slightest delay or confusion each army moved to its 
appointed task. It is this care for infinitesimal details, as well as 
for the great outlines of strategy, which has so universally commended 
the German plan of army management to the military world. The 
keynote of the German system is effective administration, under the 
guidance of a centralized head. Our American General Staff has now 
been reorganized on this basis. 

Organization of the Regular Army. — The present organization of 
the army is governed by the Acts of February 2, 1901, January 25, 
1907, April 23, 1908, and amendments; it consists of 

Cavalry: 15 regiments, 756 officers, 12,775 men. 

Field Artillery: 6 regiments, 236 officers, 5,220 men. 

Coast Artillery: 17 regiments, 672 officers, 19,321 men. 

Infantry: 30 regiments, 1,530 officers, 25,231 men. 

Engineers: 3 battalions, 2,002 enlisted men. 

Porto Rico regiment of infantry: 32 officers, 576 men. 
In addition to the above organization there are the staff corps, the 
service school detachments, military academy, Indian scouts, etc., 
amounting to 11,777 officers and men. In the Philippines there is 
permanently stationed a provisional force of native scouts composed 
of 52 companies, 180 officers and 5,732 men. The law provides that 
the total enlisted strength of the army shall not exceed 100,000 men. 
The entire area of the United States and its territories is divided into 
six main departments, the eastern, the central, the southern, the 
western, the Philippines and the Hawaiian, with a Major General 
or Brigadier General in command of each. The larger departments 
such as the eastern and central are divided into districts. The number 
of troops in each department varies widely, the larger number being 
in the Philippines department, and the smallest in the Hawaiian. 
Little or no attempt has been made to fortify the outlying military 
departments in the dependencies except the Panama Canal, and it 
is generally recognized that a well-equipped foreign enemy could 
readily deprive us of these possessions. 

The Militia. — The militia is provided for in Articles I and IV 
of the Constitution, and by the military law of the United States, 
notably the Act of May 27th, 1908. This law provides two bodies 
of militia, the unorganized, which consists of every able-bodied male 
citizen and every foreigner who has declared his intention to become 
a citizen, from the age of 18 to 45 years. There are exemptions 
from this service, including certain government officers, members 
of Congress and persons specially exempted by the laws of the 
States, also the members of any recognized religious sect whose 
creed prohibits participation in war. The organized militia con- 



THE POWERS OF CONGRESS 239 

sists of such of the above persons as are actually enrolled in the 
State forces. The Federal Militia Act requires the organization, 
instruction and discipline to be the same as that of the regular and 
volunteer armies of the United States. The President may fix 
the minimum number of enlisted men for each company and troop. 
The Act further requires each State to have an annual inspection 
and review and a certain number of meetings for drill by each com- 
pany during the year. The Secretary of War has also provided 
opportunities for the militia to take part in the manceuvers and 
encampment of the regular army. Officers from the Federal 
establishment are detailed to attend State encampments and to 
give instruction. Four million dollars is annually appropriated by 
Congress for arms, stores, camp equipage, and other expenses of 
the militia. This is apportioned among the different States by the 
Secretary of War according to the number of Senators and Repre- 
sentatives from each State, but it is given only to those States 
which have at least one hundred militiamen properly organized, 
for each member of Congress. 

Reorganization of the Militia. — Our people have never taken the 
Army or the Militia seriously. We are inclined to ridicule "war 
scares" and to treat lightly those who seek to establish our military 
preparations upon a firmer basis. In consequence, both the regular 
army and the militia itself have only a serio-comic meaning to the 
average citizen in time of peace. This is reflected in the unwilling- 
ness of Congress to face squarely our military problems and at- 
tempt to solve them by modern methods. There are two chief 
obstacles to the solution of these questions, which are now engaging 
the attention of our military authorities, (a) The Constitutional 
difficulties in reorganizing the militia, and (b) the unwillingness of 
the people to prepare for war until war breaks out. 

(a) The Constitution provides in Section 8, Article I, that " Con- 
gress shall have power to provide for calling forth the militia to 
execute the laws of the union, suppress insurrections and repel 
invasions." A second glance at this clause shows that the militia 
may not be used outside the United States, but must be employed 
exclusively as a defensive force inside the national boundaries. 
Naturally no military operations can be confined to territorial 
boundary lines. To be of full service all our military forces must 
beat the undisputed command of the Federal authorities, regardless 
of where they are to be used. A worse restriction is placed by 
Section 8, Article I of the Constitution, upon the Federal control of 
the militia, — in that Congress is authorized "to provide for or- 
ganizing, arming, and disciplining the militia. " etc., "reserving to 
the States respectively, the appointment oi the officers, and the 
authority of training the militia according to the discipline pre- 
scribed by Congress." It is inconceivable that the militia could be 
properly managed under Federal control so long as the States 
themselves carry out its training and appoint its officers. This 



240 THE NEW AMERICAN GOVERNMENT 

clause has been the loophole by which political appointments, wire 
pulling, inefficiency and even insubordination have crept into the 
military service. The experiment of a State-controlled, State- 
officered militia, which can be used only within the boundaries of 
the United States has been a failure. The seriousness of this 
problem may best be seen from the fact that whenever war breaks 
out Congress is obliged to provide for a separate volunteer army and 
to allow the militia organizations to leave the militia and enroll in the 
volunteers. This was done in i860 and 1898. Numerous military 
writers have pointed out that this means that the militia as militia 
is not serviceable in time of war but must be transformed and 
brought under complete Federal control before it can be used 
effectively. The best authorities agree that our difficulties arise 
therefore from a complete misunderstanding as to the purposes and 
methods of use of a militia force. We are unable to train an effec- 
tive force in less than two years. The regular army of 100,000 men 
must serve the purpose of first line troops for immediate use at 
the outbreak of any conflict to bear the burden of hostilities until 
the citizen soldiery can be prepared for action. This latter is the 
point at which our militia falls short. We have persistently ignored 
the fact that no foreign nation with which we might have hostilities, 
relies upon citizen soldiery for its offensive force; the main purpose 
in foreign countries, both European and Asiatic, is to secure a deci- 
sive advantage at the outset of the conflict by throwing into action 
an overwhelming force of completely trained soldiers. This means 
a difference of two years of preparation between our possible 
opponents and ourselves. This is the real center of the problem of 
military organization in the United States and it is this disparity in 
the time required for preparation between ourselves and certain 
aggressive foreign nations, which the military authorities of our 
government are seeking to remove. A well-qualified writer says 
on this point, 1 "But none of our possible enemies of the future 
will rely upon improvised armies, for the present political and mil- 
itary organization of the world is such that all the great powers can 
develop their maximum military power in a few weeks. It is ob- 
vious, therefore, that a rich and powerful nation that requires a 
year or two years to get ready, can be no match even for a smaller 
nation, if that smaller nation can develop its full military strength 
in a month or six weeks. We are fond of speaking of our capacity 
to raise an army of a million men. We undoubtedly have this 
capacity, but under present conditions, we will not be able to 
accomplish it until some months after the termination of any 
serious war that is within the bounds of human possibility. There 
is a great difference between ultimate military resources and effec- 
tive military power. A nation's ultimate military resources are 
measured by the total number of able-bodied citizens capable of 

1 Major John M. Palmer, 24th Infantry, "The Militia Pay Bill," The Infantry 
Journal, November, 19 14. 



THE POWERS OF CONGRESS 24 1 

bearing arms, but her effective military power is measured by the 
number of trained soldiers which she can assemble in time to meet a 
given military emergency. In short, Time is the dominating factor 
in the equation of power, whether we be speaking of mechanical 
power or of military power. Our ultimate military resources are 
much greater than Germany's, but in one month Germany can 
develop ninety times as much effective military power as we can 
develop in the same time. Germany can develop and deploy her 
maximum military power against the united front of Europe in two 
weeks, while it would take us more than two years to develop our 
maximum military power even if we had no enemy to interfere with 
us or to disturb the operation. But it is not necessary to adopt 
Germany's military institutions in order to solve our military 
problem. Our traditional military policy is just as sound for us as 
the policy of the " Nation in Arms" is sound for her. According to 
our traditional policy, we should have a small regular army suffi- 
cient for peace requirements and strong enough to sustain the first 
sudden shock of war, with means of expanding this peace nucleus 
into a great war army of citizen soldiers. The main difference 
between us and Germany is that while she has converted her 
traditional policy into a fact, we talk a great deal about our policy 
but have never converted it into an actual institution. Our regular 
army is not properly organized as a peace nucleus, and sound meth- 
ods for accomplishing the great war expansion have never been 
embodied in our laws. 

We have never been able to reduce our war preparations to a 
business-like system, and in the absence of system, our military 
institutions have always been hastily molded by political intrigue 
at the time of national crises. For this reason the chief characteris- 
tics of American military history have been extravagance and 
inefficiency." 

With these thoughts in mind the military authorities have 
sought to work out two solutions of the problem, — to reorganize the 
militia under a more extended Federal control, or to establish a 
species of reserve army under direct Federal management and 
leave the militia entirely to the States, without further Federal 
subsidies or assistance. 

The Plan of 1913. — The General Staff, through its division of 
militia affairs, on August 1st, 1013, issued as Circular No. 8, the 
newly adopted plan for the reorganization of the militia upon a 
more effective basis and under a more extended Federal control. 
The Circular is based chiefly upon the recommendations of "A 
Report on the Organization of the Land Force of the V . S." issued 
by the War Department in 1012. The main features of this plan 
may be briefly summarized as follows: 

1. In time of peace each State and Territory is to be considered as 
a territorial militia department, with the governor as Commander 
in Chief of each Department. Each Commander in Chief is to have 



242 THE NEW AMERICAN GOVERNMENT 

an administrative staff which in numbers, duties and organization 
shall conform to the general regulations of the War Department. 
The organized militia of each Stafe shall constitute a " division." 

2. Additional extra officers on the staff of the governor shall not 
be connected with the line or staff of the militia in the division. 

3. The administrative staff is to be proportioned to the size of 
the organization of the State and the number of troops. 

4. A " division" as prescribed in field service regulations con- 
sists of three infantry brigades of three regiments each; one regiment 
of cavalry; one brigade of field artillery (two regiments) ; one battal- 
ion of engineers; one battalion of signal corps; four field hospitals; 
four ambulance companies; one ammunition train; one supply train; 
one pack train. Those divisions which fall short of the above re- 
quirements after June 20th, 19 15, lose their status as divisions and 
their right to a major general in command and become brigades or 
lesser units. They also lose their divisional organization. 

5. An infantry brigade consists of three regiments; a cavalry 
brigade of two or three regiments and a field artillery brigade of 
one or two regiments. An infantry regiment consists of three 
battalions of four companies each. 

Fitting this organization to the militia as it exists, the war 
department has established in all twelve divisions of organized 
militia. In these divisions there are now 120,000 men and about 
10,000 officers. If brought up to the full strength these 12 divisions 
would total 270,000. Such is the plan proposed and now sought to 
be enforced by the War Department. That even this moderate 
extension of Federal control is apt to encounter serious obstacles is 
shown by the actions of the National Guard convention which in 
19 13 declared that Circular 8 was illegal in so far as it sought to 
overturn State powers in organizing and controlling the militia. 
If the National Guard officers are unwilling to acknowledge and 
accept Federal control there is apparently no means of compelling 
them to do so. Circular 8 concludes with the following words — 
"No Federal funds will be expended directly for pay and transpor- 
tation to, or indirectly by permitting the use of Federal property by, 
any officer of the Organized Militia unless he properly comes 
within the organization prescribed in this circular." But it is 
doubtful if the Federal War Department can legally withhold 
funds and subsidies from the States which insist upon their con- 
stitutional right to control their own militia. This question is 
now in course of decision in Federal courts. Unless the Constitution 
is amended to give the United States complete control of the militia, 
the only alternative is to establish a national volunteer army as a 
reserve, with a short period of enlistment and a moderate require- 
ment as to training. This has been proposed and probably offers 
the best solution of this difficult question. If adopted it would 
undoubtedly have the effect of drawing into the new Federal re- 
serve army most of the men now in the militia. 



THE POWERS OF CONGRESS 243 

The Relation of the Army to the Government. — One of the grounds 
of perpetual disturbance in all the military States is the question — 
Shall the Army be subordinate to the representative government?— 
This question has never been satisfactorily solved. If a government 
is truly representative and responsible to the people the legislature 
will attempt to control the army organization. This means the 
subordination of the duties and acts of the military officials to the 
will of the legislature. Such subordination undoubtedly causes 
some weakness and inefficiency in the army itself. At the point of 
contact between the political representatives and the army chiefs, 
party influence must inevitably creep in with its paralyzing effects. 
Even in our own country this influence is clearly apparent. On the 
other hand, if the army becomes largely independent of the legisla- 
ture, as it has in many countries of Europe, a ruling clique is soon 
set up which practices many irregular and illegal abuses, all of which 
are justified on the plea of " national defence." In the celebrated 
" Affaire Dreyfus" in France the Army clique was willing to bring 
the country to the verge of a revolution rather than submit to an 
investigation of its illegal actions. The Krupp scandals in Germany 
showed that the arms manufacturers were willing to resort to crimi- 
nal practices in order to create a demand for their product and to 
bribe German army officers in order to secure information as to 
pending contracts. In the United States the evils of militarism are 
not as yet experienced except in the financial burden imposed by 
our army and naval budgets, but if another war should involve us 
we must undoubtedly expect to face the same difficulty of political 
appointments, contract wire pulling and other forms of favoritism 
and inefficiency which we have experienced in the past. Military 
efficiency and representative government are incompatible. But 
we can lessen and remedy the defects which flow from the incom- 
patibility by creating a strong reserve of officers, administrators 
and private soldiers whose military knowledge and ability have been 
trained and tested under Federal control in time of peace. 

REFERENCES 

The Military Laivs of the United Stales: Published by the U. S. War Depart- 
ment, 1908. 

Annual Report of the Secretary of War: See especially the Report for [912. 

Circular of Information: Issued at [rregular intervals by Division of Militia 
Affairs, General Staff, War Department, Washington, I). C. See especially 
Circulars, August 1, 1013, giving plan of revised militia reorganization. 

Annual Report for 1914 of Brig. Gen. A. L. Mills, Chief, Division of Militia 
AJfairs, General Stajf. 

QUESTIONS 

1. How would you explain the large amount of space devoted in the Con- 
stitution to the war power, as contrasted w'th that devoted to other affairs 
which now seem more important? 

2. Draw a contrast between the exact authority conferred by the Constitu- 
tion upon the President and Congress respectively Over the declaration and 
management of a war.. 



244 THE NEW AMERICAN GOVERNMENT 

3. How is war declared? Give some illustrations. 

4. Show why the President with so Jittle nominal power over the declara- 
tion of war, has nevertheless such great influence in bringing on or avoiding a 
conflict. 

5. Must a formal declaration of war always precede hostilities? Examples. 

6. Explain how an advantage may sometimes be gained by beginning 
hostilities before the declaration, or by delaying the declaration even after 
hostilities have begun. 

7. What is an ultimatum, and why does it usually lead to war when de- 
livered by one great power to another? 

8. Explain the legal preliminaries leading to the outbreak of the Spanish- 
American war. 

. 9. Why does our Constitution limit each appropriation to the army to a 
period of two years? 

10. Show the proportion of our total national government appropriations 
which is devoted to the military and naval outlay. 

n. Why is Cuba sometimes spoken of as a "sphere of influence" of America? 

12. Why is the Piatt Amendment called an amendment? Explain its chief 
provisions. 

13. Show the difference between military and civil administration and 
explain some of the chief problems of army organization. 

14. What is the principal difference between the American Army organiza- 
tion to-day and that of 1898? 

15. Why is a General Staff required, and what are its duties? 

16. Show exactly how it increases the efficiency of an army. 

17. Prepare a report showing the organization of the American regular army. 

18. What is the difference between the regular army and the militia? Out- 
line the principal provisions of the Militia law as passed by Congress. 

19. Show how the provisions of the Constitution on the militia interfere 
with the efficiency of that body in time of war. 

20. Contrast the problem of army and militia organization of this country 
with that of European countries. 

21. Explain why Congress at the opening of a war does not call the militia, 
as militia into the service of the United States. 

22. Resolved that a Federal reserve volunteer army, independent of the 
State militia, should be created by Congress, to be composed of men trained two 
weeks in each year between the ages of eighteen and twenty-five, and one week 
yearly from the age of twenty-five to forty. Defend either side of this question. 

23. How would you explain the perpetual conflict between efficient army 
administration and popular government? Give examples. 

24. Prepare an essay on the military policy of the United States. 



CHAPTER XIII 

THE POWERS OF CONGRESS— Continued 

CONTROL OVER THE TERRITORIES AND OTHER 
POWERS 

Our Colonial Empire. — The new conditions of American political 
life are strikingly shown by the rise of our colonial empire. The 
dramatic events of 1898 suddenly brought the nation face to face 
with a new problem, — the government of distant dependencies. For 
this work we had neither experience nor liking. Our only effort in 
this direction, the government of Alaska, was a notorious failure, 
and a large part of our population was strongly opposed to any ex- 
tension of American control over additional territory. The war 
with Spain, the annexation of Hawaii, the purchase of the Panama 
strip, suddenly placed in our charge Cuba, the Philippines, Porto 
Rico, Guam, Hawaii, and the Canal Zone, none of them accustomed 
to our form of government nor inhabited by our race. The consti- 
tutional basis of our control over this empire rests first, upon Arti- 
cle 4, which gives to Congress the power to "dispose of and make all 
needful rules and regulations respecting the territory or other prop- 
erty belonging to the United States; " and second, upon the authority 
which Congress possesses as a part of national sovereignty to acquire 
territory. Such power to acquire necessarily includes the right to 
govern new acquisitions. 

Congress has used these powers in a series of laws called "organic 
acts " which in fact are the constitutional law of each new dependency. 
In passing these laws we have paid little or no attention to the rich 
colonial experience of other nations, and have thereby caused our- 
selves no little trouble. We have started to work out our own solu- 
tion of the problem. In each dependency we began with a military 
control following the war; later Congress has established a highly 
developed popular government, in most cases somewhat too far in 
advance of the needs and ability of the people. Finally we have 
settled down to an effort to administer this plan of government in 
as liberal a spirit as possible. The great bulk oi this work has de- 
volved upon the President and his advisers. In the early stages of 
our colonial policy the President was practically the dictator of 
colonial administration. In the memorable clause added to the 
Army Appropriation Bill of March .\ 1001, the President was en- 
trusted with the absolute control of the Philippines until Congress 

HS 



246^ THE NEW AMERICAN GOVERNMENT 

could act. 1 The Acts of April 20, 1900, for Hawaii, April 12, 1900 for 
Porto Rico and of July 1, 1902, for the Philippines gave to those 
dependencies their constitutions, and provided that the principal 
executive officers should be appointed by the President of the United 
States. In the Philippines and Porto Rico the upper House of the 
legislature is also chosen by him. When President McKinley came 
to make the appointments for these positions, he fortunately chose 
men who were pre-eminently well qualified for the work to be done, 
and then entrusted them with full power. The result has been a 
rapid organization of the governments of all the dependencies and 
an efficient and progressive administration throughout the critical 
early stages of American sovereignty. The island governments 
have had a good start. To settle everything possible in Manila, 
Honolulu and San Juan was the motto of the Administration and 
events have proven its wisdom. While the central authorities at 
Washington have thereby escaped a great deal of unnecessary red 
tape, they have been able to keep in close touch with the colonies 
by frequent conferences between the President and the governors 
and other executive officials from the dependencies. In order to 
concentrate the control over the dependencies there has been es- 
tablished a special Bureau of Insular Affairs in the War Department 
under the direction of an experienced army officer. Besides its 
ordinary functions the Bureau has become an extensive purchasing 
agency for the islands, a means of preparing needful legislation 
to be introduced in Congress, and last but by no means least, an 
effective press agency by which the public is constantly informed 
of important happenings in the colonies. 

The systems of government adopted for the three principal 
island dependencies are as follows: — The Philippine Government 
Act of July 1, 1902, provides for a legislature of two houses, the 
upper chamber being the former Philippine Commission, all the 
members of which are chosen by the President, the lower house 
being elected by the people upon a suffrage qualification determined 
by the Commission. The members of the upper house have both 
executive and legislative duties, being charged with executive 
cabinet offices. President Wilson appointed for the first time a 
majority of natives in the Commission. The Governor has a veto, 
an extensive appointing power and the usual general executive 

1 The first and most important paragraph in this extraordinary grant of power 
reads as follows: 

"All military, civil, and judicial powers necessary to govern the Philippine 
Islands, acquired from Spain by the treaties concluded at Paris on the 10th day 
of December, 1898, and at Washington on the 7th day of November, 1899, shall, 
until otherwise provided by Congress, be vested in such person or persons and 
shall be exercised in such manner as the President of the United States shall 
direct, for the establishment of civil government and for maintaining and pro- 
tecting the inhabitants of said islands in the free enjoyment of their liberty, 
property and religion; Provided, That all franchises granted under the authority 
hereof shall contain a reservation of the right to alter, amend, or repeal the 
same." 



THE POWERS OF CONGRESS 247 

authority, besides the command of the constabulary and the con- 
trol over the United States military force stationed in the islands. 
The local governments are organized as provinces and municipios 
or townships under a law passed by the Philippine Commission. 
In the province there is a local government, partly appointed and 
partly elected; in the municipality it is principally elected by the 
people under suffrage qualifications requiring either education or 
property. 1 

All the important and arduous work of organizing the govern- 
ment and giving it an impetus in the right direction has been per- 
formed by an appointed commission of Americans and natives. 
These men have coped with the gigantic problem of creating a 
new government, suppressing chronic ladronism or thievery, 
stamping out plague, cholera and smallpox among a people many 
of whom were intensely ignorant, hostile and superstitious, de- 
vising a new system of taxation, counteracting the paralyzing 
effects of widespread devastation and famine, inciting the people 
to renewed industrial activity, attempting to win their confidence 
and educate them for some degree of self-government. The popular 
assembly has been elected by a political party which demands 
immediate independence from American control, but its members 
have shown a willingness to co-operate with the appointed upper 
house in the passage of necessary laws. 

Hawaii is the farthest advanced in civilization of all our depend- 
encies. It has therefore been given the most independent system 
of government, closely approaching that of the mainland terri- 
tories or embryo States. The law of 1900 provides a legislature, 
both houses of which are elected directly by the people under an 
education qualification. The Governor and his Cabinet are ap- 
pointed by the President as are also the principal judges. The 
general average of education is very high among the native Ha- 
waiians, but not among the Chinese and Japanese, who constitute 
a large part of the population. The local governments were origi- 

1 The regulations governing suffrage are prescribed by the municipal code as 
passed by the Philippine Commission on January 31, 1901, and are as follows: 

"The electors charged with the duty of choosing elective municipal officers 
shall be male persons, twenty-three years of age or over, who have had a legal 
residence in the municipality in which they exercise the suffrage lor a period oi 
six months immediately preceding the election, and who are not citizens or sub- 
jects of any foreign power, and who are comprised within one of the following 
three classes: 

"(a) Those who prior to the r3th of August, [898, held the office of Municipal 
Captain, Gobcrnadorcillo (local official), Alcade (mayor), Lieutenant. Caluva de 
Barangay (village chief), or member of any Ayuntamiento (municipal council. 

" (b) Those who own real property to the value of 500 pesos, or who annually 

pay thirty pesos or more Of the established taxes. 

*' (c) Those who speak, read or write English or Spanish." 
" It will be seen that in addition to the qualifications given in the first para- 
graph, an elector need only have one of t hree qualifications mentioned under a, b 

and c. Electors are also required to subscribe to an oath of allegiance t 
United States sovereignty. 



248 THE NEW AMERICAN GOVERNMENT 

nally mere districts, administered by officials appointed from the 
central government at Honolulu but an elective town and county 
system has been drafted from American models. 

Porto Rico, the smallest and most densely populated of the island 
dependencies, occupies a stage midway between Hawaii and the 
Philippines, both as to general advancement and governmental 
form. The law of April 12, 1900, has provided a bi-cameral legis- 
lature, the lower house elected, the upper house, or Executive 
Council, appointed by the President. Of the eleven members of 
the Executive Council, five must be natives of the island. Six 
of the Council members are the heads of important executive de- 
partments and the President has followed the practice of appointing 
Americans to these positions, thereby securing a majority of Ameri- 
cans in the Council and giving all the leading executive depart- 
ments to Americans. Doubtless in the course of time it may be 
found advisable to place Porto Ricans in these positions, but in 
order to maintain American control over the upper house of the 
legislature, this plan was considered a necessary safeguard. In 
practice, with few recent exceptions, the native members of the 
Council have co-operated most heartily with the Americans in 
most of the essential measures of improvement and reorganization. 
Occasionally the lower house refuses to concur in financial measures; 
in order to prevent a deadlock in such cases the law provides that 
if the two houses fail to agree on revenue and appropriation bills, 
the law of the preceding year shall remain in force. 

The local governments, reorganized on an excellent plan proposed 
by the commission which codified the insular laws in 1900 and 
1901, are municipal in character, with a local council and mayor. 
There is in all our dependencies a much greater power of central 
supervision and guidance over the local districts in order to insure 
the efficient maintenance of new American methods in the local 
governments; but such centralization as exists is vastly less in 
extent than that maintained under Spanish dominion. 

Of all our new possessions it may be said that certain funda- 
mental needs are apparent and that the governments for perhaps 
another decade may be obliged to concentrate attention upon these 
vital questions; they are roads, schools, agricultural and industrial 
development and a just system of taxation. For some reason Con- 
gress has not provided for immediate action on a large scale in 
the first two of these fields. Because of the slow and painful 
progress which is being made in road-building, particularly in the 
Philippines, vast sections of the most fertile and productive land 
are excluded from markets. All the island dependencies are taxing 
their resources to the full limit for road-building but when it is 
remembered that in the Philippines and Porto Rico under Spanish 
control few roads of permanent value were constructed and main- 
tained, the amounts now expended seem inadequate. In the 
Philippines the difficulty was aggravated by the refusal of Congress 



THE POWERS OF CONGRESS 249 

to allow Philippine products to enter American markets free of 
duty until 1909, thereby retarding the natural recuperation of the 
archipelago from the effects of its long and disquieting internecine 
strife and recent economic losses. A large loan to all the insular 
treasuries from the National Government, even at the risk of limit- 
ing for a time their financial independence, would remove the most 
serious obstacle, and would thereby enable the local administrative 
officials to complete in a short time the destruction of those funda- 
mental barriers to progress, — ignorance and inaccessibility. In 
no field of our colonial administration has the lack of funds such 
serious consequences as in that of education. A glance at the re- 
ports of the insular officials in charge of public instruction shows 
that in spite of the most liberal appropriations which the insular 
treasuries can bear and a highly efficient administrative personnel, 
the public schools reach only a minor portion of the children of 
school age. Taking for example the Philippine conditions, we find 
that for the last reported school year, 191 2-13, there was a total 
attendance of 463,000, which is a trifle less than one- third of those 
who rhould be in school. Over 1,000,000 children in the archi- 
pelnrjc : re not provided with educational facilities, and in the words 
of the report: "this condition is largely due to insufficiency of 
funds." The Insular government, the provinces and the munici- 
palities in the Philippines expended $3,500,000 or about 47c per 
capita of the population; while in the United States we spend 
$4.45 per capita, nearly ten times as much. A very small outlay 
from the Federal treasury or a loan guaranteed by the National 
Government would speedily remedy this condition. 

The problem of equitable taxation arose from the antiquated 
system bequeathed by Spain. The richer classes, almost without 
exception, escaped tax paying, leaving the burden of the govern- 
ment costs to the poor. This was arranged by taxes on food and 
the necessaries of life, upon small retail dealers, octroi taxes (duties 
upon goods entering the towns) and a ruinous tax upon certain 
colonial exports. Vexatious fees and other duties were also collected 
for trifling services by government officials. The corrupt methods 
of administering the law were far worse than the legislation itself. 
The American administrator has substituted for this system a 
general property tax so arranged as to fall principally upon the 
wealthier classes. Its administration docs not admit of the same 
amount of "favors to friends." As a result the burden of taxation 
is more equitably distributed and a larger revenue is actually 
collected with less cost to the people. 

Does the Constitution Apply to the Territories and Dependen- 
cies? — An important distinction is to be made between different 
parts of the territory owned or controlled by the United States. 
In the States all portions o( the Constitution apply, as they <\o 
also in the incorporated territories, such as Alaska. Hawaii, and 
the District of Columbia, but in those districts which arc not in- 



250 THE NEW AMERICAN GOVERNMENT 

corporated nor technically a part of the United States, and are 
held in the national possession, such 'as the Philippines, the Panama 
Canal Zone, Porto Rico, Samoa, etc., the usual restrictions upon 
the United States Government, contained in the Constitution, 
do not apply, and the people of each dependency may constitu- 
tionally be tried without a jury and their political and civil rights 
may be adjusted in such ways as the National Government finds 
necessary or expedient. The only universal prohibition or limit 
placed upon the powers of Congress, which operates in every dis- 
trict controlled by the United States, is the 13th Amendment 
which prohibits slavery in the United States "or in any place sub- 
ject to their jurisdiction." 

The Admission of New States. — The Constitution provides that 
new States may be admitted by Congress. It was originally intended 
that these new commonwealths should be formed from the territory 
then owned by the National Government, but with the acquisition 
of new tracts of land extending to the Pacific, a number of new dis- 
tricts were populated by immigration and were admitted into the 
Union until the present number, forty-eight, has been reached. 
There now remains only Alaska, on the mainland and Hawaii, Porto 
Rico, and the Philippines among the insular possessions, which have 
not been admitted. All of these demand and expect either statehood 
or independence. There is no constitutional reason why the islands 
could not be admitted if they became sufficiently advanced in civili- 
zation, prosperity and the ability to manage their affairs. Hawaii 
has already reached this point and Porto Rico is nearing it. 

The usual procedure in admission is an enabling act passed by 
Congress authorizing the inhabitants of a territory to hold a con- 
stitutional convention and to prepare the draft of a new State Con- 
stitution. When this draft has been formally presented to Congress 
and approved by that body, a date is fixed in the final act of Congress 
at which the new State shall spring into being. In approving the 
draft of the new Constitution, Congress may, and frequently has 
taken the occasion to require certain provisions to be incorporated 
in the new Constitution, and in some instances the Executive has 
let it be known that he will veto admission if the new Constitution 
contains obnoxious features. President Taft in 191 2 vetoed an 
act of Congress, approving the State Constitutions of Arizona and 
New Mexico because they contained a provision for the recall of 
judges by popular vote. The President held that a new State should 
not start out on its career as a commonwealth under the handicap 
of a dangerous institution which would deprive the judiciary of its 
independence. The provision objected to was thereupon dropped 
and the new States admitted. When Utah was admitted, it was 
stipulated by Congress that the new Constitution should contain a 
provision prohibiting polygamy. 

The admission of these three States has brought to light an inter- 
esting undeveloped part of our constitutional law. Could Utah, 



THE POWERS OF CONGRESS 25 1 

once admitted, amend her Constitution and permit polygamy? 
Could Arizona and New Mexico reinsert in their Constitutions the 
provision for a recall of judges by a popular vote? Can a territory, 
once admitted as a State, " change its mind" and reinsert in its 
constitution by amendment a provision objected to by the national 
legislature when the territory was admitted? Or can it drop from 
that constitution a provision required for admission by the Con- 
gress? The prevalent view is in favor of the State's right to do so, 
Coyle v. Smith, 221 U. S. 559, 191 1. There are cogent reasons on 
both sides. Those in favor of the right to amend declare that if the 
State does not possess this right it is placed on a different footing 
from other States already admitted. We should then have " classes " 
of States, some with greater power than others; some with the ability 
to regulate marriage relations as they choose, others without this 
prerogative; some with the power to adopt popular checks upon the 
judiciary, others without such a right. It is unthinkable, the ad- 
vocates of this view declare, that the framers of the Constitution 
intended to vest in Congress any such power to cripple the State 
sovereignty permanently in some commonwealths, while allowing 
it free play in others. 

Those who hold the opposite view advance two strong arguments 
in its favor: first, that the State when admitted makes a solemn 
agreement with the Nation to observe certain deep, fundamental 
principles of constitutional law which are considered so vital as to 
be made a condition of entrance to the Union. To declare that this 
solemn obligation holds only during the brief period of admission 
and that the State, once admitted, may immediately revoke its action, 
is to hold that the State's word was given in a spirit of deceit and sub- 
terfuge and that the Nation is helpless to enforce its pledges against 
its own members. Second, the clear language of the Constitution 
offers much support to the theory of binding force of agreements made 
at the time of admission. Section III, Article 4, declares that "new- 
States may be admitted by Congress into this union:" Article 6, 
Clause 2, declares, "this Constitution, and the laws of the United 
States which shall be made in pursuance thereof, etc., — shall be 
the supreme law of the land; — anything in the Constitution or laws 
of any State to the contrary notwithstanding." This clause lends 
support to the view that the admission of a State by Congress, having 
been enacted by a law, becomes a part of the supreme law of the 
land and the conditions under which this admission is stipulated 
are also essential parts of thai supreme law. Onee this is admitted, 
the whole question devolves upon a single point what is the intent 
of Congress in passing the enabling act? This intent, like the purpose 
of Congress in passing any other act, then becomes subject to the 
usual rules of interpretation. Accordingly, the refusal of the Presi- 
dent to sign an act admitting two territories until a change in their 
Constitutions was made would not bind them permanently, since 
it is a simple refusal by the President to concur in the act of Congress, 



252 THE NEW AMERICAN GOVERNMENT 

but a positive condition inserted by Congress in an act admitting the 
State would become, when signed by the President, a law of the 
United States and would seem to have such permanence and funda- 
mental force as to render it a part of the "supreme law of the land." 

The Panama Canal. — In 1902 the United States purchased from 
a French company and from the Republic of Panama the site and 
rights of the Panama Canal which had been partly excavated by 
the French corporation. By the law of June 28th, 1902, it estab- 
lished a commission of seven members appointed by the President 
and Senate with full authority over the canal zone including the 
work of construction. The general powers of the commission as a 
governing body were executed by its chairman, while the active 
work of construction was carried on by the chief engineer. A strip 
of territory five miles wide on each side of the canal was taken by 
the Canal administration and paid for by the United States, the 
price being fixed by a joint commission of four members composed 
of representatives of Panama and the United States. This strip 
has been laid waste and all human habitation forbidden, except by 
agents of the canal administration, the purpose being to protect 
the waterway in time of war. Both ends of the canal are fortified. 
The results secured by the commission astonished the civilized world. 
Previous to the American control of the canal strip the French engi- 
neers had been engaged for decades in the construction work and 
had been defeated only by the insuperable obstacle of yellow fever. 
It was a known certainty that every white man who went to the 
canal region must succumb if he remained there only a few years. 
Meanwhile the experiments made by physicians in various parts of 
the world within the previous five years, had shown that the chief 
means of spreading yellow fever was the mosquito. The American 
engineers began their work at this point. Under the direction of 
Colonel Gorgas a war of extermination and prevention was started 
against the mosquito, the swamps were drained, pools filled in, stag- 
nant water sprinkled with petroleum, and in a short time yellow fever 
and other epidemics were wiped out. Upon the basis of healthful 
sanitary conditions the remainder of the work has been pushed 
energetically, and although it was seriously hindered by political 
influence in appointments, and by the intrigues of certain interests 
opposed to the canal, it was completed before the date originally 
set for its opening. The cost has been $350,000,000. The highest 
number of men engaged 40,000. The United States government has 
issued $130,000,000 of canal bonds to pay for the construction, and 
arrangements are made to retire these bonds within thirty years. 
The remainder of the cost has been paid from current funds. The 
tolls charged ships in passing through the canal are fixed at $1.20 
per net ton (100 cubic feet) for ordinary vessels and $1.50 per ton of 
displacement for warships. 

On August 24, 191 2, Congress passed an act providing for the 
opening, maintenance, protection and operation of the Canal and 



THE POWERS OF CONGRESS 253 

the government of the Canal zone. The Zone includes a strip 10 
miles wide, running from a point 3 miles from the shore in the Carib- 
bean to a point 3 miles from the coast in the Pacific, and including 
the group of islands in the Bay of Panama. The President is au- 
thorized to declare any and all land in the Zone to be necessary for 
the construction and operation of the canal and to take title to such 
lands for the government. He is also authorized to establish and 
has established a new government to supersede the Canal Commis- 
sion which built the waterway. This new government consists of a 
governor and a number of department chiefs subordinate directly 
to him. 

Authority is also given to the governor to divide the Zone into 
districts and determine the location of towns and cities, and estab- 
lish a magistrate's court in each district. One district court of the 
United States for the Zone is established by the Act. Rules and 
regulations governing the right of an)- person to enter or remain in 
the Zone are made by the Governor and it is made a felony to injure 
or obstruct the waterway. Railway companies are forbidden to 
own, control, or operate any ships through the canal which do or 
may compete for traffic with such railways. The fact of competition 
is determined by the Interstate Commerce Commission. Vessels 
belonging to corporations which are violating the Sherman Act are 
forbidden to pass through the canal. In time of war or when war is 
imminent the Present may designate an army officer to take charge 
of the Zone in which case the civil Governor becomes his subordinate. 
Following this Act, the President by executive order of Feb. 4, 19 13, 
and Feb. 2, 1914, created the following executive departments under 
the direction of the Governor: 

Operation and maintenance, 

Purchasing, 

Supply, > 

Accounting, 

Health, 

Executive Secretary. 

The latter has general charge of the administration under the 
Governor's direction. The Governor himself reports to the Secre- 
tary of War. 

Naturalization. — The Constitution confers upon Congress power 
to establish "an uniform rule of naturalization," — In pursuance of 
this power two methods of naturalization have grown up. First, 
by general acts Congress has conferred citizenship upon whole 
classes of persons such as tribes of Indians, the inhabitants of new 
territory acquired by the United States, etc. By the Act oi June 28, 
1898, the Muscogee or Creek Tribe of Indians and the Choctaw 
and the Chichasaw Tribes were admitted to United States citizen- 
ship upon the breaking up of their tribal relations; the Aet oi 
April 30, igoo, provided thai all persons who were citizens o\ Hawaii 
at the time of its acquisition by the United States, should be ad- 



"^ 



254 THE NEW AMERICAN GOVERNMENT 

mitted to United States citizenship.. On other occasions, the 
President and the Senate, in the exercise of their treaty-making 
power may provide that citizenship shall be conferred upon the 
inhabitants of territory acquired by the United States. 

Second, the general and more usual method of naturalization is 
that prescribed by the revised statutes in sections 2165 and follow- 
ing, which provide that an alien must reside five years in the country 
before being finally admitted to naturalization. Two years before 
receiving citizenship he must make a preliminary declaration of 
intention to apply and at the end of that time (2 years after the 
declaration) he may make his final application for citizenship. 
Both the preliminary declaration and the application are made 
before a United States court or a State or territorial court of record. 
Among other formalities the applicant must renounce allegiance to 
any foreign power and must give up all claims to any title of no- 
bility which he may have possessed. He must swear his fealty 
to the United States Constitution and laws and must present 
evidence of good moral character and of the necessary period of 
residence in the United States. 

Not every alien may be naturalized under the general law. For 
example, no provision has been made for Asiatics. In fact, only 
two classes of persons have been provided for under the general 
naturalization act which, in section 2169 of the revised statutes 
declares: — "The provisions of this title (of naturalization) shall 
apply to aliens being free white persons, and to aliens of African 
nativity and to persons of African descent." Since no mention is 
made of persons of Malay race or descent it is held that they cannot 
be naturalized except by special act of Congress or by treaty. 1 

When any naturalized citizen resides for two years in a foreign 
State from which he came, he loses his American citizenship, 
unless he makes a declaration before a Consular or diplomatic 
officer retaining his citizenship. Wives take the citizenship of 
their husbands, but upon the termination of the marriage relation, 
they may recover their original citizenship or nationality, by 
making a declaration to that effect. A child born outside of the 
United States but living here becomes entitled to American citizen 
ship if its parent later is naturalized during its minority. The 
children born abroad of American citizens are entitled to American 
citizenship if they continue to reside abroad, providing that upon 
reaching the age of 18 they register with an American Consul their 
intention to become residents and remain citizens of the United 
States, and providing that upon reaching the age of 21 they take 
the oath of allegiance to the United States. 

Implied Powers. — Surprisingly few of the subjects daily dis- 
cussed by Congress are expressly mentioned in the Constitution. 
Congress enacts irrigation, meat and food inspection, corporation 

1 An exception has been made in favor of Hawaiians, Samoans, and Fili- 
pinos. 



THE POWERS OF CONGRESS 255 

accounting laws, and many other measures; but the Constitution 
has nothing to say on such points. Where then did Congress secure 
the authority? The general rule for interpreting all the powers of 
Congress is given in the 10th Amendment: "The powers not dele- 
gated to the United States by the Constitution; nor prohibited by 
it to the States, are reserved to the States respectively or to the 
people." In short Congress has only the powers given it by the 
Constitution; all others are reserved to the States and to the people. 
For every law passed by Congress there must be some basis in the 
powers granted by the Constitution, either in the express powers, 
those given by the direct terms of the Constitution, or the implied 
powers, those which are not specifically mentioned but are derived 
or inferred from the express powers. For example, the power to 
build a post office is expressly given in the words of Section 8, Arti- 
cle I, Congress shall have power "to establish post offices and post 
roads;" the authority to prohibit the passage of objectionable 
literature in the mails is an implied power. It is inferred from the 
expressly granted authority over post offices and post roads. 

Furthermore the Constitution confers on Congress the authority 
to "make all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all others power vested 
by this constitution in the government of the United States, or 
in any department or officer thereof." This provision of Section 8 
of Article I gives a still firmer basis for the implied powers. If 
Congress has the authority to provide a navy it must of necessity 
have also the right to take all steps which are "necessary and 
proper" to that end. Is the establishment of a training academy 
at Annapolis necessary and proper for the maintenance of a navy? 
Would a commercial or consular school for the training of officials 
be a fitting means of regulating commerce? Could Congress pur- 
chase and operate railways and roads as a regulation of commerce? 
Can Congress order battleships built in government yards instead 
of private plants? Can it regulate the manufacture of articles, 
intended to circulate in interstate commerce? In fact most of the 
interesting and important national questions of our time involve 
the implied powers. The answer to these questions depends upon 
the exact meaning of the terms "necessary and proper." 

Chief Justice Marshall, the great expounder of the Constitu- 
tion, in his famous decision on the case of McCulloch p. Maryland, 
4 Wheaton, 316, 1S10, ruled that the National Government had 
the power to create a banking corporation as a "necessary and 
proper" means of collecting and caring for the funds derived from 
taxation. The State of Maryland bad contended that such action 
by the United States was unconstitutional, and that an implied 
power was ''necessary" only when it was absolutely rci/// :><•</, to 
carry into etTect some express power. If the express power could 
be executed in any other way, then the implied power was not 
necessary, and hence it was unconstitutional. In overruling this 



256 THE NEW AMERICAN GOVERNMENT 

contention and deciding that Congress had the power to incor- 
porate a bank, Marshall said, — 

" Throughout this vast republic, from the St. Croix to the Gulf 
of Mexico, from the Atlantic to the Pacific, revenue is to be col- 
lected and expended, armies are to be marched and supported. 
The exigencies of the nation may require that the treasure raised 
in the North should be transported to the South, that raised in 
the East conveyed to the West, or that this order should be re- 
versed. Is that construction of the constitution to be preferred 
which would render these operations difficult, hazardous, and ex- 
pensive? Can we adopt that construction (unless the words im- 
periously require it) which would impute to the framers of that 
instrument, when granting these powers for the public good, 
the intention of impeding their exercise by withholding a choice of 
means? . . . 

" The government which has a right to do an act, and has imposed 
on it the duty of performing that act, must, according to the 
dictates of reason, be allowed to select the means; and those who 
contend that it may not select any appropriate means, that one 
particular mode of effecting the object is excepted, take upon them- 
selves the burden of establishing that exception. . . . 

"This provision was made in a constitution intended to endure 
for ages to come, and, consequently, to be adapted to the various 
crises of human affairs. To have prescribed the means by which 
the government should, in all future time, execute its powers, 
would have been to change, entirely, the character of the instru- 
ment, and give it the properties of a legal code. It would have 
been an unwise attempt to provide, by immutable rules, for exigen- 
cies which, if foreseen at all, must have been seen dimly, and which 
can be best provided for as they occur. To have declared that the 
best means shall not be used, but those alone without which the 
power given would be nugatory, would have been to deprive the 
legislature of the capacity to avail itself of experience, to exercise 
its reason, and to accommodate its legislation to circumstances. 
If we apply this principle of construction to any of the powers of 
the government, we shall find it so pernicious in its operation that 
we shall be compelled to discard it. . . . 

"For example, the power to establish post-offices and post-roads. 
This power is executed by the single act of making the establish- 
ment. But from this has been inferred the power and duty of 
carrying the mail along the post-road, from one post-office to an- 
other. And, from this implied power, has again been inferred the 
right to punish those who steal letters from the post-office, or rob 
the mail. It may be said, with some plausibility, that the right 
to carry the mail, and to punish those who rob it, is not indis- 
pensably necessary to the establishment of a post-office and post- 
road. This right is, indeed, essential to the beneficial exercise of 
the power, but not indispensably necessary to its existence. So, 



THE POWERS OF CONGRESS 257 

of the punishment of the crimes of stealing or falsifying a record 
or process of a court of the United States, or of perjury in such 
court. To punish these offences is certainly conducive to the 
due administration of justice. But courts may exist, and may 
decide the causes brought before them, though such crimes escape 
punishment. . . . 

"We admit, as all must admit, that the powers of the govern- 
ment are limited, and that its limits are not to be transcended. But 
we think the sound construction of the constitution must allow 
to the national legislature that discretion, with respect to the 
means by which the powers it confers are to be curried into execu- 
tion, which will enable that body to perform the high duties as- 
signed to it, in the manner most beneficial to the people. Let the 
end be legitimate, let it be within the scope of the constitution, 
and all means which are appropriate, which are plainly adapted 
to that end, which are not prohibited, but consist with the letter 
and spirit of the constitution, are constitutional. ..." 

Delegation of Legislative Power. — Can Congress confer its 
powers upon any other authority such as the President, or the 
interstate commerce commission, or a State? The first clause of 
Section I, Article I, of the Constitution provides that "All leg- 
islative power herein granted is vested in a Congress." This 
means that legislative power, if used, must be exercised by Congress 
and cannot be delegated to others. Congress cannot permit a 
State government to make congressional laws, nor can it authorize 
the President to pass laws that repeal them. In many of the cases 
in which it has done so, its action, if brought into the court, would 
have been declared illegal. But Congress can establish a general 
principle or legislative rule and authorize the President to apply 
this rule when the conditions require it, or upon a contingency 
arising which Congress foresees. This is not a delegation of legis- 
lative power but is merely an instruction to the President as to 
how a legislative rule shall be applied. It was early urged against 
the powers of the interstate commerce commission that the power 
to fix railway rates was legislative and that Congress could not 
delegate this power. If this view had been accepted by the courts, 
our entire policy of regulation of public service companies by ex- 
cutive commissions would have fallen; but in repeated instances 
the Court has held that the Commission in making rates is merely 
taking a general principle Wxvd by the law itself, viz. that rates 
shall be "just and reasonable" and is applying this principle to 
new cases. This is not making law, but executing it. 

In Field v. Clark, 143 U. S. 649, the Marshall Field department 
store of Chicago protested against the payment oi a duty on certain 
imported goods, claiming that the tariff act which imposed the duty, 
passed October 1, 1800 was unconstitutional on the ground that it 
authorized the President to suspend free trade in sugar, coffee, 
tea and hides and impose a duty on these articles coming from any 



258 THE NEW AMERICAN GOVERNMENT 

country which imposed unequal or unreasonable duties on the 
products of the United States, and that this was accordingly a 
delegation of legislative power. Congress, by this act, attempted 
to secure reciprocity. In order to do so, it fixed the higher rates 
to be levied upon articles coming from countries which would not 
grant reciprocity to the United States; it instructed the President, 
whenever he discovered such conditions, to impose the higher 
rates fixed by Congress upon the imports in question. The Su- 
preme Court ruled that this was not a grant of legislative power 
but was merely the fixing of a legislative rule and that the Presi- 
dent was only permitted to ascertain facts, namely, the inequality 
or unreasonableness of duties imposed on American products by 
other countries, and thereupon to apply the rule set by Congress. 

REFERENCES 

Annual Report of Bureau of Insular Affairs. 

The Philippines Commission Annual Report. 

The Governor of Porto Rico, Annual Report. 

The Governor of Hawaii, Annual Report. 

The Governor of the Panama Canal Zone, Annual Report. 

The Organic Acts governing the Philippines, Hawaii, Porto Rico and the 
Canal Zone. 

Ro we : Porto Rico and the United States. 

The Government of Dependencies, The Annals, May, 191 2. 

The Naturalization Act of the United States with Amendments, Washington, 
D. C, Government Printing Office. 

Van Dyne: Naturalization in the United States. 

PROBLEMS— THE DEPENDENCIES 

1. Resolved that the National Government has the constitutional power to 
acquire and govern dependencies. Defend the affirmative, and cite the appro- 
priate clauses of the Constitution. 

2. Explain how each of our present dependencies has been secured. 

3. Prepare an essay or report on the government of the Philippines, showing 
the constitutional powers of Congress, the more important points in the organic 
acts governing the Philippines, and some of the chief problems in the administra- 
tion of that dependency. 

4. Prepare a similar report on the government of Hawaii, and explain why 
it is more liberal than that of the other dependencies. 

5. A similar report on the government of Porto Rico. 

6. The Philippine legislature is about to pass a bill which may be disastrous 
to the interests of the island. What can the President do to prevent its pas- 
sage? 

7. What can Congress do? 

8. If the President believes that the administration of the Philippine 
laws is not being properly carried out what can he do? 

9. Give your impressions as to the fundamental needs in our dependencies 
and their government. 

10. What would be your attitude toward a large loan to the islands from the 
national treasury, for schools and roads? 

11. Explain the chief changes in the principles of taxation introduced by the 
American government in our new dependencies. 

12. How are new States admitted? 

13. Can Congress admit a new State under conditions? Examples. 

14. If a clause is placed by Congress in the constitution of a new State as a 



THE POWERS OF CONGRESS 259 

condition of admission to the Union, could the State later drop this clause from 
its constitution? 

15. Resolved that all parts of the Constitution apply to the dependencies. 
Defend the negative and cite your authority. 

16. Prepare a report on the Government of the Panama Canal Zone. 

PROBLEMS— NATURALIZATION 

1. Resolved that Congress should have the authority over naturalization. 
Defend the affirmative. 

2. A Chinese who has lived in the country seven years asks your advice as 
to how he should become naturalized. What would you tell him? 

3. An Italian who has been here four years asks you what steps he shall 
take to become naturalized. What would be your advice? 

4. Richard Roe is born of American parents residing in Paris. What 
determines his citizenship? 

PROBLEMS— IMPLIED POWERS 

1. Explain the doctrine of implied powers of Congress and give several 
examples. 

2. Where does Congress get the authority to establish and maintain the 
naval academy at Annapolis? 

3. Give Chief Justice Marshall's view of the implied powers. 

4. State which of the following laws, if passed by Congress, would be con- 
stitutional and the parts of the constitution upon which the law could be based: 

(a) Creating an agricultural college in Lincoln, Nebraska. 

(b) In Washington, D. C. 

(c) A mining college in Alaska 

(d) Requiring the teaching of industrial subjects in all public 

schools. 

(e) Establishing a special school for postal carriers. 

(f) Forbidding the manufacture of dangerous explosives in any part 

of the United States. 

(g) Limiting the hours of labor in all industries. 

(h) Providing for the purchase and operation by the government of 
all railways in the United States. 

5. Can Congress grant its legislative power to the States? To the Pres- 
ident? To the interstate commerce commission? Explain and cite the constitu- 
tion. 

6. The tariff law of 1890 authorized the President to suspend certain articles 
from the free list and impose a duty on those articles when coming from any 
country which imposed unequal or unreasonable duties on products of the 
United States. Was this constitutional? Reasons. 



CHAPTER XIV 
THE NATIONAL CONSERVATION POLICY 

Rise of a National Policy. — No country enjoys a greater diversity 
and abundance of natural resources than are possessed by the 
United States. The history of our people has been chiefly that of 
the conquest and subjugation of Nature. Until quite recently this 
natural wealth has been looked upon as practically unlimited. 
Our government policy has been simple, — to throw open the public 
lands to immediate settlement and encourage the settlers to exploit 
them to the full. As successful as this policy has been in making our 
country the wealthiest of nations, it was appropriate only to the 
stage of colonization. The settlers regarded forests, rivers, and 
other physical features chiefly as obstacles to be removed or over- 
come and it was hard to realize their value in the future economic 
progress of the country; so the forests were cut away, the farms were 
planted year after year to the same crop without fertilizer, the coal 
and mineral deposits were exploited with prodigal waste. Labor 
was costly and natural resources cheap. To save resources at the 
expense of labor would have been ruinous in the early settlement 
and development of our country, so that the main effort of our 
people has been to develop labor-saving machinery rather than the 
means of saving coal or timber or land or ore. The European who 
visits us is accustomed at home to seeing cheap labor with costly 
materials. The effort in Europe is to save such materials even at 
the expense of employing more labor. Our European visitor 
therefore regards us as the most extravagant of nations. As our 
conditions gradually change and the waste of resources brings us 
nearer to the danger point, the need for a national policy of con- 
servation arises. No individual or association of individuals can 
save the natural resources from exhaustion. This must be done 
by the National and State Governments acting in harmony to pro- 
tect the supply for future generations and to insure the proper and 
economic use of our natural wealth to-day. Conservation became a 
national problem during the administration of Mr. Roosevelt, and 
largely through his efforts and those of Mr. Gifford Pinchot, who 
was at that time the head of the Forestry Bureau. In October, 
1907, a meeting of the Inland Waterways Commission was held at 
which the President presided, on board the steamer McKenzie, on 
the Mississippi River, and it was there decided to call a conference 
on the general subject of conservation of the nation's resources. 
Accordingly the President issued invitations to the Governors of the 
States and Territories to meet at the White House in May, 1908, 

260 



THE NATIONAL CONSERVATION POLICY 261 

together with the members of Congress, and other delegates from 
the States and from national organizations. This Conference of 
Governors marks the formal beginning of a definite movement to 
conserve our resources. 

The National Conservation Commission. — The White House 
Conference led to the appointment by the President of the National 
Conservation Commission, of which Mr. Pinchot was made chair- 
man. This body was composed of about 50 members, and was 
divided into four sections: Waters, Forests, Lands and Minerals. 
The commission first made an inventory of our natural resources, 
and had its report ready for the second joint conference on conser- 
vation, held at Washington in December, 1908, by which conference 
it was endorsed. The three volumes of this report constitute a most 
remarkable census of our natural wealth, and the work of the com- 
mission has brought the whole problem of conservation into the 
fore-front of national politics. 

The Forests. — Our forests now cover 550,000,000 acres, or about 
one-fourth of the United States. The original forests covered not 
less than 850,000,000 acres. The lumber industry began in the 
northeast, and has moved gradually westward and southward. 
Washington is now the principal lumber-producing State, with 
Louisiana second. Although only about 30% of our original forest 
area has been cut or destroyed, this portion represents the most 
valuable parts of our timber supply, especially in the north and 
east. The commercial supply of every kind of timber, except in the 
Pacific forests, has been seriously reduced, so that the price of lum- 
ber has been steadily rising. 1 

At the present rate of consumption, many of our most important 
woods are threatened with exhaustion within the next thirty or 
fifty years. We are now taking from our forests each year, not 
counting the loss by fire, three and one-half times their annual 
growth. Besides this there is a large amount wasted. 2 

Important steps towards a national policy have been taken in the 
creation first, of national forests, and second, of the Forest Service, 

1 Yellow pine costs 65% more at the mill than it did in 1900; Douglas fir 
costs 63% more; and white pine 53% more. White pine is so nearly used up that 
the lumber sawed from it in the Lake States has fallen off 77% since 1890, and 
since 1900 over 45% in the whole country. 

2 Since 1870 forest fires have- each year destroyed an average of $50,000,000 
worth of lumber. Taking together the loss by fire, waste and destruction from 
other causes it appears that from 1,000 feet of standing timber taken from the 
forests, only 320 feet of lumber is obtained, but in addition to its effect on the 
wood supply the forest problem has a wide reaching influence on the river-flow, 
and thereby affects the questions of water power development, the improvement 
of internal waterways, reclamation o\ arid and swamp lands, the prevention of 
floods, and the preservation of the soil. Scientific forestry is a comparatively 
recent art, which has only been applied to a limited extent in America but it is 

estimated that with modern methods we should produce a constant timber 

supply beyond our present needs, and with it conserve the usefulness of our 

streams for irrigation, water supply, navigation and power, Under propel 

management our forests .should yield over lour limes as much as they do now. 



262 THE NEW AMERICAN GOVERNMENT 

and its activities. Inasmuch as the public lands of the United 
States contain vast areas of valuable forests, Congress has passed 
laws providing for the withdrawal of forest lands from public entry, 
and their reservation as national forest reserves. Briefly these laws 
are as follows: 

Act of 1891. — This act gave the President of the United States 
authority to set aside by public proclamation, any part of the pub- 
lic lands covered with timber or undergrowth, as public reserva- 
tions. 

Act of 1907. — Congress enacted that such forest reserves should 
be known as National Forests. 

Act of 1907. — This law declared that no more forest reserves 
should be created in the States of Oregon, Washington, Idaho, 
Montana, Colorado, or Wyoming, except by act of Congress. Wher 
President Roosevelt saw that Congress was about to pass this law. 
he immediately issued proclamations laying aside 32 separate 
reserves, containing 17,000,000 acres of forests, in the six States 
enumerated in the Act, and thus rendered the Act practically void. 
The report shows the area of "national forests" in the United 
States proper as about 168,000,000 acres. There were also about 
27,000,000 acres in Alaska reserved, and a few thousand acres in 
Porto Rico. 1 

Some of the States have begun to make reservations of forest 
lands. New York State has set aside as State forest reserves 
1,600,000 acres, and in 1908, planted about 1,100,000 spruce and 
pine trees. Pennsylvania has reserved 900,000 acres, and is plant- 
ing 400,000 trees each year. The Pennsylvania tax law is regarded 
as a model in this respect. It provides for a very low rate on such 
private forest lands as are submitted to State supervision, with 
a moderate tax on timber, which is not collected until the timber is 
cut. Oregon, Washington, California and Minnesota also own large 
forest areas. 

The Forest Service.— The national forest service is a bureau in 
the department of agriculture, under the direction of a forester and 

1 National Forest Areas by States and Territories. 

California 28,000,000 acres 

Alaska 27,000,000 " 

Montana 20,000,000 " 

Idaho 20,000,000 " 

Oregon 16,000,000 " 

Colorado 16,000,000 " 

Arizona 15,000,000 " 

Washington 1 2,000,000 " 

Besides the national forests, the Federal Government owns over 10,000,000 
acres of forest lands in the Indian Reservations, and 2,500,000 acres in National 
Parks. The total amount owned by the Government represents about 1/3 of the 
total stand of merchantable timber in the country. Scientific forestry is being 
practiced on 70% of this area, and is being extended to all public owned forests. 
Less than one per cent of the forests privately owned are being managed scientif- 
ically. Generally speaking, the more valuable timber is on land owned by 
private individuals and corporations. 



THE NATIONAL CONSERVATION POXICY 263 

a number of assistants. It is divided into branches controlling 
operation and lands, silviculture and products, grazing, products, 
laboratory, and acquisition of lands. There are 163 reserves or 
national forests as they are now called, in order to avoid the 
impression that all forest lands are withdrawn from use. These are 
divided into six districts with a district forester and a staff of 
subordinates in each. The total number of employes is about 4,000, 
of whom slightly over 700 are employed in administrative labora- 
tory and clerical work. The remainder who are rangers, assistant 
rangers, guards and wardens, are distributed throughout the 
forest tracts. Under the direction of Mr. Gifford Pinchot and 
Mr. Henry S. Graves this service has been made one of the most 
efficient in the government. The care and administration of the 
National Forests is its chief work but it also co-operates with the 
State bureaus. The purposes followed by the bureau are: protec- 
tion against fire and depredations; the harvesting of mature timber; 
the maintenance and betterment of a growing crop of timber; the 
protection of the water supply; utilization of the forage crop; 
betterment of range conditions; establishment of better means of 
communication through the forests. 

Fire Prevention. — The National Forests are protected against 
fire by a system of fire patrol. Combined with this are such meas- 
ures as brush burning, fire lines, back firing, the construction of 
roads, trails, and telephone lines, and the use of lookout and obser- 
vation towers. The most important feature is the patrol system. 
Rangers are stationed at convenient intervals throughout the 
forests. Their hardships and self-sacrifices deserve the admiration 
of the public. They enforce the laws against building fires in the 
forests, and keep a lookout for flames, to extinguish any which may 
spread. When a conflagation breaks out, they receive assistance 
from rangers in other districts. Many of the States have systems of 
patrol, or provide for fire-fighting by annual appropriations. 
Private owners have also formed co-operative fire-fighting associa- 
tions. The national bureau often co-operates with these associa- 
tions and with the State wardens. The increasing efficiency of the 
Federal service is well shown by the fact that as it has boon en- 
larged and extended, the proportion of the public forests burned 
each year has steadily decreased. 1 The area that each ranger has 

1 The principal causes of forest fires are sparks from locomotives, carelessness 
of campers, and lightning, AH experience shows that damage by forest fires is 

practically preventable. The most important principle in the prevention of 
fires, is to maintain such a complete patrol that tires may be extinguished in 
their early Stages, rather than to try to fight them after they are well Started. 
'The cost of maintaining an efficient patrol is small, compared with the annual 
loss from tires. It is estimated that the S50.000.000 annual loss in the United 
Stain's could be practically prevented by the annual expenditure of Si 0.000. c^^o. 
Less than l% of the private forest lands are now patrolled. It is considered 

even more important to prevent fires in regions where the forests have been 

cut and where only underbrush exists, because lires on such lands are apt to 
prevent re-forestation. 



Hi 



264 THE NEW AMERICAN GOVERNMENT 

to cover (40,000 to 200,000 acres) is too great, however, and the 
number of rangers would have been' greatly increased long since, 
had it not been that a faction in Congress has opposed all attempts 
to aid in the forest service. 

Forest Planting. — Forest planting means the protection of de- 
nuded watersheds from erosion, and the protection of farm homes 
and crops from wind and cold, as well as an increase in the timber 
supply. The United States contains 65,000,000 acres of stripped 
land suitable only for the growing of trees, but which will not bear a 
productive forest again except through the actual planting of 
trees, or sowing of seeds. There are also in the west 16,000,000 acres 
of naturally treeless land which should be planted to trees in the 
interest of agriculture in the prairie region and on irrigated lands. 1 
There are now 24 nurseries on the national forests, of which all but 
nine are small or merely experimental nurseries. Three or four of 
the largest have an annual productive capacity of from 1,000,000 to 
4,000,000 trees. 2 

Special Studies and Investigations. — The Forest Service, be- 
sides practicing scientific forestry in the national domain, conducts 
a series of investigations in silviculture, embracing the collection of 
information concerning the growth and planting of trees; in the 
uses to which waste products of forest and mill may be put; statis- 
tics on mill products, prices of lumber, etc. ; wood preservation and 
timber tests. 

For several years there has been a strong opposition to the 
national conservation policy, both as to forestry and mineral lands, 
on the part of such States as Idaho, Montana, Washington, and 
Oregon, which have rather sparse populations and wish to attract 
new settlers by throwing open their natural resources to unre- 
served exploitation. As large parts of the national domain are 
located in these States the conservation policy naturally conflicts 
with local desires for quick development, even at the cost of the 
future. The members of Congress from these States have had 
placed in the forestry and land laws the proviso that no additional 
forestry reservations shall be created in certain western States 
except by Act of Congress. They have also succeeded in cutting 
down seriously the appropriation for the forest service, and disas- 
trous forest fires have resulted. In deference to this opposition the 
Secretary of Agriculture adopted in 19 13 a regulation by which any 
local associations whose members include a majority of the res- 
idents making use of the national forests may select a committee to 
meet with the local forest officers and the latter recognize the 
committee in settling questions which arise between the forest 
service and the public. A further step was taken by the depart- 

1 There have thus far been planted less than 1,000,000 acres, of which probably- 
less than half is successful, because the planting has been done without adequate 
knowledge as to where, what and how to plant. 

2 Annual Report of the Forester, 1909. 



THE NATIONAL CONSERVATION POLICY 265 

ment in recommending to the President the restoration to entry, 
settlement and sale of certain reserved lands in the national domain 
which, after careful examination, proved to be of more value for 
agricultural than for forestry purposes. The department is also 
trying to increase the sale of timber from the national domain. 
For the year 19 14 the receipts totalled $2,500,000. 

The Minerals. — The mineral production of the United States 
is valued at $2,000,000,000 every year; this includes coal, iron, 
petroleum, natural gas, phosphates and other similar products. 
Together they form over 65% of the freight tonnage of the railways. 
It is estimated that the yearly waste in the extraction and treat- 
ment of these minerals exceeds $300,000,000, a large proportion of 
which might readily be saved. It is estimated that while the 
annual consumption of coal is now about five tons per capita, there 
is an annual waste of three tons per capita; that although the 
proportion of that wasted to that utilized has diminished, yet to 
date the aggregate amount of waste has exceeded the aggregate 
amount actually utilized. The waste is attributed to two general 
causes. The careless and wasteful methods of mining, 1 and im- 
perfect combustion in furnaces and fire boxes. The known supply 
of petroleum is about 15 or 20 billion barrels but new lands are 
yearly being exploited and production is increasing rapidly, but 
wastes are enormous. Our American supply threatens to become 
exhausted by the middle of the present century. Natural gas is the 
most perfect known fuel. The total yield per year is valued at 
about $62,000,000. It is estimated that an equal amount is wasted 
by being allowed to escape into the air. Phosphate rock is used 
extensively for fertilizers. In most countries supplies of this min- 
eral are guarded carefully. The United States exports it in large 
quantities. As it becomes more necessary to conserve our soil by 
artificial means, the domestic demand and production increases. 
The known supply cannot long withstand the increasing demand. 

Mineral Laws.— Little effort has thus far been made to protect 
our mineral resources from waste or improper exploitation. The 
Act of 1 9 10 authorizes the President to withdraw temporarily from 
settlement and sale any of the public lands in the United States or 
the district of Alaska and to reserve them for public purposes. This 
reservation continues until revoked by the President or by Act of 
Congress. On lands not so reserved entry and purchase may be 

1 The mining waste is largely duo to leaving pure coal in the mines in the 
shape of pillars, partitions, etc., most of which becomes covered with broken 
stone and earth and is rendered unlit for future extraction. Much eoal is left on- 
mined because it contains impurities, such as earthy material, sulphur, ete. It 
is rich in carbon, however, and might be Utilized to make gas. and operate gas 
engines, and in this way yield as much power as the same weight of pure eoal 
used in steam engines. The mine waste now averages a little more than half 
the amount saved. The chief waste, however, is caused by Imperfect combus- 
tion. Steam engines utilize on the average about s 1 , of the thermal enei . 
the coal. Internal combustion engines utilize less than 10%, and in electric 
lighting, less than i c / of the thermal euergs is rendered available. 



266 THE NEW AMERICAN GOVERNMENT 

made under the law of 1873 which provides that an individual may 
acquire not more than 160 acres of mineral land and an association 
not more than 640 acres, at a price ranging from $10 to $20 per acre. 
The policy of the government on mineral lands should encourage 
their development and should seek to prevent the waste and misuse 
of lands that are developed. 

Proposed Changes. — In order to reach these ends the national 
conservation commission advocates: 1 

That coal lands should be disposed of under leases only, the lease 
to safeguard the interests of both the mining investor and the public. 
That the area which may be leased should be made greater than the 
amount that may now be purchased under the law of 1873. That 
no patents shall be issued for any public lands in the future, ex- 
cept with a specific reservation of coal on those lands. That sur- 
face lands may be open to cultivators of the soil, and that the miner 
may be allowed to acquire, with compensation to the owner, such 
parts of the surface as may be needed in producing coal. That 
leases of coal lands shall be made by the Secretary of the Interior 
under such regulations as he may deem wise for the protection of 
the public interest, in reasonably limited areas, and at such charges, 
and for such periods as he may deem reasonable. 

The Lands. — Within a century we may have to feed three times 
as many people as now, and the main bulk of our food supply must 
be grown on our own soil. Ultimately the present acreage may be 
nearly doubled by the clearing of millions of acres of brush and wooded 
land, and the reclamation of swamp and arid lands, But as our 
acreage is limited, and cannot increase with population it will be 
necessary to increase the yield per acre. The average yield of wheat 
in the United States is only 14 bushels per acre; in Germany 28 bush- 
els, and in England 32 bushels. Our yield of oats is 30 bushels per 
acre, while England produces 45, and Germany 47. Although our 
soil is fertile, our mode of farming destroys its properties, and does 
not secure full crop returns. Soil fertility need not be diminished, 
but may be increased. Proper management should at least double 
our average yield per acre. The greatest wastes of our soil are due 
to preventable soil washing by floods and erosion, the growing of 
continuous crops year after year, and the neglect of fertilizers. Much 
of these wastes might be avoided by government action, both in 
educating the people and by a change in public policy. At the time 
of the adoption of the Constitution, the Federal Government came 
into possession of vast areas of what were then western lands through 
cession by the original thirteen States. This land, the "public do- 
main," has been increased through the subsequent acquisition of 
lands, such as the Louisiana purchase, and the purchase of Alaska. 
The original public domain, including acquisitions of the United 
States proper and of Alaska 368,103,680 acres, making a total of 
over 1,800,000,000 acres, was 1,441,436,160 acres. The Constitu- 
1 Report, page 91, 



THE NATIONAL CONSERVATION POLICY 267 

tion provides that Congress may dispose of the public lands, and 
in exercising this power Congress has enacted much legislation pro- 
viding for their disposal, until in 1909, the total area, exclusive of 
Alaska, had been reduced to about 380,000,000 acres. Nearly all 
that is left is arid or unsuitable for settlement for other reasons. 
The administration and sale of public lands are in the hands of the 
General Land Office, a division of the Department of the Interior. 
The Commissioner of the General Land Office is the administrative 
head of this vast domain. The policy of the government with regard 
to the disposal of public lands may be roughly divided into three 
epochs: sale, development, and reservation. During the epoch of 
sale, the government disposed of its lands with the main purpose of 
procuring revenue, and with little or no regard to settlement thereon. 
The Revolution left the new country in debt, and it was believed by 
the statesmen of that day that the most important source of revenue 
would be the sale of lands. In 1796 the first general land act pro- 
vided for the survey and disposal of public lands by public sale partly 
on credit, to the highest bidder. A later amendment provided that 
land might be sold at private sale, but at a minimum price of two 
dollars an acre. In 1820, sales on credit were abolished, and the 
minimum price was reduced to $1.25 per acre. During the thirties 
and forties there came about a gradual transition to the policy of 
development. Settlers began taking up the land and improving it, 
and it came to be recognized that people who had thus settled 
on and improved land should have a prior claim to purchase such 
land. 1 

The Homestead Law, 1862. — The theory that the public lands 
should be so disposed of as to encourage settlement and the develop- 
ment of the West, instead of for the purpose of raising revenue, crys- 
tallized in the homestead law of 1862, the most important of our 
general land acts. As now amended, any person 21 years old or 
over, who is a citizen, or who has declared his intention of becoming 
a citizen, and who is not already the owner of 160 acres, may make 
entry for 160 acres of unappropriated land. After such entry, he 
must establish his residence on the land within six months, and then 
must continue to reside upon, cultivate, and improve his land for a 
period of five years. At the end of this time, he may, upon furaish- 

1 This led to the Pre-emption Act of [84] by which persons were allowed to 
settle on public lands, each set tier being limited to 100 acres. By filing his 
claim at the time of settlement and by furnishing proof at the end oi from one to 
three years (the time differing for different lands) that lie had lived on and 
improved his land, he could then pay for ami receive title to it. This pre- 
emption act was devised for the purpose oi stimulating settlement and home- 
making, hut it still provided for payment for the land at the end o\ from one to 
three years. It merely recognized the rights of those who had settled or pre- 
empted. Although the spirit of this law was timely, it was poorl\ enforced and 

became the subject of much abuse. Claims could be proved up with little or no 
residence. Much was taken up by speculators. People were paid by wealthy 

"land-grabbers" to take up claims on government land, and then sell out the 
claim. The law was not repealed until 1891. 



268 THE NEW AMERICAN GOVERNMENT 

ing proof of compliance with the law, p make final entry, and come 
into full possession, without paying anything except the land office 
fees. The serious weakness of this law has been the so-called commu- 
tation privilege; at the end of 14 months, a settler under the Act 
may have the right to purchase the land at a minimum price of $1.25 
per acre, provided he can prove that he has lived on the land and 
improved it during that time. This commutation privilege has been 
much abused. The period of occupancy is so short that it often 
pays to make entry for speculative reasons, rather than for legitimate 
home-making. The Commissioner of the General Land Office has 
strongly advocated either the repeal of the commutation clause, 
or the lengthening of the time in which commutation proof can be 
made, from fourteen months to three years. 1 

Timber and Stone Act, 1878. — Among the other laws passed 
since 1862, perhaps the most important is the Timber and Stone Act 
of 1878. This law originally applied only to the States of Oregon, 
Washington, California and Nevada, but in 1892 was extended to 
all the public land. Under it, any person may purchase outright 160 
acres of unappropriated non-mineral land which is unfit for culti- 
vation, and valuable for timber or stone, at a minimum price of $2.50 
per acre. Such purchaser must swear that the land is to be used by 
himself alone, and that he is not purchasing for speculative reasons. 
False swearing renders the person guilty of perjury and involves 
forfeiture of the land and the money paid therefor. Although inno- 
cent on its face, this law has also resulted in great abuse. It has been 
the means by which a few large interests have secured at a nominal 
price thousands of acres of the most valuable forest lands in the 
United States. Its repeal has often been urged. Other laws, such as 
the Reclamation Act and the Carey Act, etc., are described in the 
section on Reclamation. 

The Era of Reservation. — The third epoch in our public-land 
policy, that of reservation, begins with the conservation movement. 
The most important step taken has been the reservation of nearly 
200,000,000 acres of timber land in the national forests. The policy 
is also manifest in the agitation to reserve water-power sites, to 
secure new laws on the disposal of coal-lands, and on the repeal or 
modification of the commutation clause of the Homestead Act. The 
recommendations on these subjects by the national conservation 
commission 2 are : 

Every part of the public lands should be devoted to the use which 
will best subserve the interests of the whole people. 

The classification of public lands for their administration in the 
interests of the people. 

The timber, the minerals, and the surface of the public lands should 
be disposed of separately. 

Public lands more valuable for conserving water supply, timber, 

1 1909, Report, page 20. 
1 Vol. 1, page 19. 



THE NATIONAL CONSERVATION POLICY 269 

and natural beauties or wonders, than for agriculture should be held 
for the use of the people except for mineral entry. 

Title to the surface of the remaining non-mineral public lands 
should be granted only to actual home-makers. 

Pending the transfer of title to the remaining public lands they 
should be administered by the Government and their use should be 
allowed in a way to prevent or control waste and monopoly. 

Conservation of Waters has to do with the regulation of the flow 
of streams so as to make them navigable, produce power, furnish 
water-supply to cities, and prevent floods or soil erosion. There are 
now 26,000 miles of navigable streams, and this mileage could be 
doubled by the improvement of waterways. As population increases 
and traffic becomes more dense, the possibilities of improvement 
become apparent, especially for the carriage of heavy and bulky 
articles of freight which can be transported much cheaper by water 
than by rail. The direct yearly damage by floods since 1900 has 
increased steadily from $45,000,000 to over $238,000,000. Floods 
also mean the waste of vast quantities of water. This could be 
largely obviated by the storage of waters in huge reservoirs in the 
upper branches of streams, and by the re-forestation of denuded 
catchment basins. The regulation of stream-flow also means a greater 
development of water power, a source of power which is becoming 
increasingly important. Under our present policy, water power 
sites have been neglected except by a few large corporations. 

Water Power. — There are now being generated in the United 
States about 26,000,000 horse power by means of fuel, principally 
by the use of coal for steam boilers, and about 5,500,000 horse power 
by means of falling water. One hundred years ago, before the de- 
velopment of the steam engine, falling water was the only source 
of power, consequently all mills were located on streams. With the 
development of the steam engine and the exploitation of our coal 
resources, mills and factories have grown up without regard to the 
existence of water power. 1 

1 It has been cheaper to establish the factory near the market, and burn coal 
to generate power, than to build the factory near water power and transport 
the goods to market. The possibilities of water power development have 
accordingly been neglected. Since the application of electricity to industrial 
purposes in the eighties, however, and especially since the transmission of 
electricity over great distances, water power has come into greater demand, 
and there has thus been an increased use of such power as well as the purchase 
and holding of power sites on a large scale for future development and use. The 
greatest distance that electrical energy is now transmitted is 220 miles, but it 
may be carried even further. The best examples of the use of electricity gen- 
erated by falling water are in the Pacific cities, I .os Angeles, San Francisco, 
and Seattle, and the region about Niagara Palls. It is estimated that in \cw 
York State water power is at least $12.00 per horse power per year cheaper 
than steam power. As the chief item in the cost of steam power is the cost of 

coal, it follows that as coal becomes relatively more scarce and the price rises, 

the advantage of water power over steam for certain industries steadily increases. 
The available water power of the United States with conservation, approximates 

200,000,000 horse power; in other words, we are now developing only about one* 



270 THE NEW AMERICAN GOVERNMENT 

The disposal of water power sites has been merely an adjunct of 
the public land policy under the Homestead Act; it has generally 
been possible for individuals to acquire land containing valuable 
water power without extra payment. Thus it has come about that 
within recent years a few corporations have come into possession 
of an amount of undeveloped water power equivalent to one-third 
of that now in use. An investigation of the Bureau of Corporations 
showed that thirteen corporations hold this amount. The danger 
in such ownership is that it would render any future policy of con- 
servation so costly as to be almost impracticable. 

This important phase of our water power development came 
before the public when, in 1908, the President vetoed a bill relating 
to a franchise for a dam on the Rainy River, Minnesota, on the 
ground that it prevented the best ultimate use of the river. In 1909 
a similar bill permitting the construction of a dam on the James 
River in Missouri was vetoed and in a message to Congress at that 
time the danger of allowing the undeveloped water power to pass 
into the control of a few private interests was pointed out. In order 
to prevent this the President adopted the policy of withdrawing from 
entry public lands containing valuable power sites. 

The Act of June 25, 19 10, already mentioned, allows the President 
in his discretion to withdraw from settlement or sale any of the public 
lands of the United States or Alaska and reserve them for water 
power sites, irrigation or other public purposes. 

The following recommendations covering water power sites were 
made by the Secretary of the Interior in 1910: 

The title to such power to be reserved to the Federal Government, 
and the power to be leased, for a period not to exceed 30 years, with 
option of renewal, under certain conditions. 

Lease to be forfeited unless a certain amount of power is developed 
within four years. 

A moderate rent to be charged subject to revision every 10 years. 

Reclamation. — This technical term includes the draining of 
swamp lands and the irrigation of arid wastes. Although we generally 
think of reclamation as irrigation there is much more land that 
may be conserved for agricultural uses by drainage of swamps. 
The area of swamp is estimated at 75,000,000 to 80,000,000 acres, 
located principally in Florida, Louisiana, Mississippi, Arkansas, 
Michigan and Minnesota. By the Act of 1850, the United States 
granted to the several States the lands which were classified as 

fortieth of the power ultimately available, although much of this power cannot 
be used until far in the future because of the outlay of capital required for its 
development. The value of a stream for furnishing water power depends on its 
minimum flow. The difference between the maximum flow and the minimum 
flow of practically all our rivers is very great. The variation in flow of the 
Hudson River is as 100 to 1 ; and of the Delaware River at Port Jervis it is more 
than 300 to 1. The flow of the streams can be largely equalized by means of 
storing waters during flood seasons. This has already been done for com- 
paratively small streams in New England. For the larger rivers its value is less. 



THE NATIONAL CONSERVATION POLICY 27 1 

swamps. Over 65,000,000 acres were turned over to the States under 
this law and by them all but 5,000,000 acres were conveyed to private 
holders. Only about 1,300,000 acres remain in national possession 
at present. 1 It is estimated that about 16,000,000 acres of swamp 
land, largely in the upper Mississippi Valley, have been reclaimed 
and converted into exceedingly profitable farm lands, and that the 
value of such reclaimed spaces is double or treble the original value 
plus the cost of drainage. Practically all the wet lands of the coun- 
try can be reclaimed at profit, and the Conservation Commission 
estimates that they would form homes for a population of 10,000,000. 

Irrigation. — To irrigate large sections of arid land, immense 
works are necessary, and private corporations had begun to attempt 
this as early as 1880. Most of the large ditches now in use were built 
by such corporations, many of the latter being bankrupted by the 
long period of waiting for profits. The individual farmers, however, 
flourished. Recently, the Federal Government has begun to partici- 
pate actively in the reclamation of arid lands. The total amount 
of land under irrigation in the United States in 1908 was about 
13,000,000 acres. 2 The National Commission reported that irriga- 
tion was possible on about 45,000,000 acres. California contains 
10,000,000 acres, Montana and Wyoming 6,000,000 acres each, and 
Idaho 5,000,000 acres of irrigable land. 

The Federal Government has passed three important laws for the 
encouragement of irrigation: (a) the desert land laws, (b) the Carey 
Act, and (c) the Reclamation Act. The original Desert Land Act was 
passed in 1877, and allowed entry on 640 acres of arid land, with the 
right to purchase at 25 cents per acre provided the entrant shall irri- 
gate the land within three years. In 1891 the maximum amount of 
land was reduced to 320 acres, and it was further provided that an 
entrant must give proof that he has expended at least one dollar per 
acre per year for three years, before he can get title to the land. This 
Act was devised to encourage irrigation by individuals. It was 
poorly adapted for large-scale irrigation, and has led to some abuse. 

The Carey Act of 1895 provides that the Federal Government 
shall grant to each of the arid States such areas of desert land, not 
to exceed 1,000,000 acres, "as the Slate may cause to be irrigated, 
reclaimed, occupied, and not less than 20 acres of each 1O0 acres 
irrigated by actual settlers," within 10 years from the passage of 
the Act. 3 In 1901 the time limit was extended, further modifi- 
cation in 1908 granted to Wyoming and Idaho an additional 

1 Rep, National Cons. Com. I, 83 and 111, 361 et seq. 

2 Rep. NaT! Cons. Com. 11, 07. The acreage in principal States was as 
follows: 

Idaho 2,670,000 acres 

( Colorado 1 .S50.000 

California 1 ,800,000 " 

Montana 1,500,000 " 

Wyoming " 

3 Kept. Nat'l Cons. Com. 11, 70. 



272 THE NEW AMERICAN GOVERNMENT 

1,000,000 acres. The conditions of, this Act have been accepted 
by the following States: Colorado, Idaho, Montana, Nevada, 
Oregon, Utah, Washington and Wyoming. Up to July 1, 1908, 
over 2,000,000 acres had been turned over to the States. When 
the States acquire land under this law, they enter into contracts 
with corporations to reclaim the lands. When the irrigation 
works are completed, the lands are sold to individual settlers by 
the State, the payments for water-rights being made by such 
individuals, to the company building the works. We thus have 
reclamation of arid lands through co-operation of the Federal 
Government, the States, corporations, and settlers. The law seems 
to be working well in that it encourages legitimate home-making. 

Reclamation Act of 1902. — The most important step that the 
Government has taken was the passage of the law of June 17, 
1902, under which the government itself undertakes the irrigation 
of lands still in the public domain. A special fund in the treasury 
is set aside out of the proceeds of sale of public lands, and is put in 
charge of the Secretary of the Interior, who makes surveys and 
examinations, and constructs projects of irrigation. He also oper- 
ates such projects until charges for the water have been repaid, — ■ 
whereupon the burden of operation and maintenance passes to the 
owners of the land. The irrigation projects of the government 
have been confined mainly to those enterprises which are too large, 
too costly, or too slow in producing returns to tempt private or 
corporate investment. A separate bureau of the Interior Depart- 
ment, called the Reclamation Service, has been organized to take 
charge of this work. It has already completed vast systems of 
irrigation and has others in course of construction; these contem- 
plate the ultimate irrigation of 2,700,000 acres. It is estimated 
between 1902 and 1910, the total receipts from the sale of public 
lands for irrigation were about $60,000,000, most of this having 
been expended in the reclamation of arid lands. 1 In 19 10 Congress 
authorized an issue of $20,000,000 of bonds to complete the existing 
irrigation plans. 2 

1 Some of the most important irrigation projects of the government are the 
Salt River system with an area of 272,000 acres and a tunnel two miles long, and 
a dam 1,000 feet long and 284 feet high, the Uncompaghre project in Colorado 
with an area of 146,000 acres and the Gunnison tunnel $}4 miles long; other 
projects in Idaho covering 450,000 acres, and in South Dakota covering 100,000 
acres. 

2 A comprehensive program of changes in Federal law was proposed by Pres- 
ident Taft in his special message on Conservation to Congress on January 15, 
1910: 

1. The revision of the public land laws to correct abuses, and to make them 
available only for the bona fide settler. 

2. The validation by Act of Congress of the withdrawal from public entry of 
public lands containing water power sites. 

3. The careful classification of public lands. 

4. The separation of mining rights from the title to the surface land; the 
surface land to be disposed of under the general land laws, but the minerals to be 
disposed of only by lease or royalty. 



THE NATIONAL CONSERVATION POLICY 273 

REFERENCES 

C. A. Van Hise: Conservation. 

Report National Conservation Commission. 

Annual Reports Secretary of Interior and Secretary of Agriculture — especially 
the reports of the chief forester, chief of reclamation service and commissioner of 
general land office. 

Conservation of Natural Resources, Special Volume, May, 1909, The Annals of 
the American Academy, Philadelphia. 

QUESTIONS 

1 . Why do we need a national policy of conservation? 

2. How has the relative cost of labor and raw materials delayed this policy? 

3. Would you favor leaving the whole matter of conservation to individuals 
and corporations or to the national and State governments and why? 

4. Explain the historical origin of our present conservation movement. 

5. Outline the special need of forestry regulation. 

6. What has Congress provided on this subject? 

7. What has the President done? 

8. What have the States done? Summarize the Pennsylvania Forest Land 
and Timber Tax. - 

9. Summarize the organization of the forest service and explain its work. 

10. How are the national forests protected from fire? 

11. Give your impressions of the possibilities and needs of forest planting. 

12. How would you show the need of government conservation of mineral 
resources? 

13. How does the present Federal law regulate the private acquisition of 
mineral lands in the public domain? 

14. Explain the proposals for further legislation. 

15. Ought the government to give away or sell at a nominal price valuable 
ore and mineral lands and thereby encourage their quick development by a few 
large corporations or should it attempt to secure their development by leasing 
them for limited terms of years? Reasons. 

16. Why is our public land policy of importance to the people? 

17. What was the original land policy? 

18. Explain the homestead law. 

19. What are its practical defects? 

20. How are forest lands acquired under the Timber and Stone Act? 

21. Contrast the present with the past land policy of the government. 

22. Explain the most important proposals for future legislation by the 
Conservation Commission. 

23. What is the practical importance of a public water conservation policy? 

24. How and why has water power increased in value in recent years? 

25. How are water-power sites conserved by the Act of iqio? 

26. Explain the chief proposals for additional laws on this subject. 

27. What is meant by reclamation? 

5. The renting of water power sites on a lease for not longer than 50 years 
with provisions for the development o\ such rented sites, and against their 
monopolization. 

6. The continuation of the extremely important work oi the Department of 
Agriculture in its study of soils. 

7. The issue of $30,000,000 of bonds for the purpose of finishing the irrigation 
projects now under way. 

8. An annual appropriation for the re foresting of the sources of certain 
navigable streams, to preserve the regular tlow of water. 

o. The improvement of the Ohio River ami the Upper Mississippi and 

ultimately of the lower Mississippi. Also the carrying out of a general scheme of 
waterway development. 



274 THE NEW AMERICAN GOVERNMENT 

28. Explain the practical value of irrigation to the western farmer and show 
the extent of the need. 

29. Summarize the provisions of the Carey Act. 

30. The reclamation act of 1902. 

31. Give some examples of what the government has done under the latter 
act. 

32. Explain the chief features of President Taft's conservation message of 
1910. 

S3. Prepare an essay on National Conservation of Natural Resources show- 
ing what the government itself is doing and what it could profitably do. 

34. Prepare a report on the forestry and other conservation laws of your 
State. 



CHAPTER XV 

THE FEDERAL JUDICIARY 

There is no feature of the American government which has been 
so generally admired abroad nor which is now undergoing such 
drastic criticism at home, as the Federal judiciary. The unusual 
power possessed by our courts, of declaring a State or National 
law void when it is contrary to the Constitution, has brought the 
judge into a much more prominent position in this country than 
elsewhere and has set him above both legislator and executive. 
But with this high prominence has come an unexpected and un- 
desired responsibility, that of defeating the legislative will, — an 
exercise of power which necessarily calls down upon the courts 
the highest praise and the most violent denunciation from different 
circles of the people. The strong influence of court decisions upon 
business and labor conditions is becoming more apparent and public 
attention is being attracted to the courts in a way that must in- 
crease their efficiency and usefulness. We shall examine briefly: 

i. Why we have separate Federal Courts. 

2. Their present organization. 

3. Their practical operation and influence. 

Reasons for Separate Federal Courts. — The Constitution of 1787 
established a national system of law which was to be uniform 
throughout the United States. In order that the interpretation 
of this law by the courts should be maintained on the same level 
in all parts of the country, a Federal court system was necessary. 
Observers of our State governments are often surprised by the lack 
of uniformity and differences of opinion between the courts of 
different States in the enforcement of the same legal principles. 
Such a danger could not be permitted in the Federal legislation. 
Second, not only must the interpretation of the national law be 
uniform, but it must also be Impartial. If the Federal law wore 
left to the State courts to interpret, these might favor their own 
citizens at the expense of those of other States or of the foreigner. 
Third, there were problems of State control of lands; there were 
questions in dispute between the State governments themselves 
and fourth, there was also the possibility that the State courts 
might enforce the national laws in such a sense as to rob Congress 
of its intended powers. We can hardly imagine a State court 
giving those broad statesmanlike national views of the powers oi 
Congress, which are contained in John Marshall's Supreme Court 
opinions nor could we expect that when the State ami Na- 
tional powers came into conflict the Slate judges would support 

375 



276 THE NEW AMERICAN GOVERNMENT 

any views of National progress that would limit the State sover- 
eignty. 

For these reasons a separate Federal judiciary was established, 
a plan that has proven highly successful in all of the points above 
described. As a general rule, the personnel of the Federal courts 
is superior to those of the States both in legal knowledge and in the 
ability to handle large legal and constitutional questions in a large 
way. Not only have they established the desired uniformity of 
Federal law but under the stimulus of the Supreme Court they 
have helped and guided in the growth of the National powers and 
established the National sovereignty on a secure footing over that 
of the States. At the same time they have played an indispensable 
part in preserving and protecting the Constitution. 

The People's Interest in the Constitution. — Important as is the 
duty of interpreting the national law with uniformity, the greatest 
service of the national courts is the protection and development of 
the Constitution. There is no government question to-day which 
is so little understood as the development of the Constitution by the 
courts. It is to the interest of every man, woman and child in the 
country that the Constitution should grow in order to insure a 
steady, continuous progress of our business and social conditions. 
This progress is a never-ending duel, in the political arena, between 
radicalism and conservatism. If either side completely vanquishes 
the other through a long series of years, the progress of the country 
is not steady, but suffers either a reaction or a severe prostration. 
The radicals always fasten their attention on human rights and 
point out how these rights are being violated under the existing 
system; but the radicals cannot be trusted with permanent control 
because they gradually press their doctrines to impracticable 
extremes and fall under the influence of wild, unbalanced leader- 
ship. Nor are the conservatives any more trustworthy, since their 
thought is but little occupied with unequal human rights or griev- 
ances. Their aim is to protect the strong and to preserve what is, 
while their leaders, though more able, are too often "controlled." 

The normal, healthy business and social progress of the nation 
cannot be secured by the overwhelming and long-continued victory 
of either of such forces; it must come through the gradual working 
out of a feasible compromise in the system and policy of the govern- 
ment. How shall this compromise proceed with some steadiness 
and continuity? We must have some machinery which will prevent 
too sudden or sweeping a change by the radicals or too violent a 
reaction by the conservatives. This machinery is the Federal ju- 
diciary. 

The Constitution is replete with safeguards against extreme 
radicalism, 1 the court must either defend and uphold these bul- 

1 See the practical illustrations of this whole thought in the Chapters on the 
Constitutional Protections of Business, the Police Power, and the Powers of 
Congress. 



THE FEDERAL JUDICIARY 277 

warks of conservatism or see the national progress confounded by 
the ill-considered whim of a momentary majority. The Constitu- 
tion grants progressive powers, the court must either interpret 
these in the broad, free, advancing spirit of statesmanship or make 
the Constitution not an instrument of life but a cause of paralysis. 
It is as much the judicial duty to find new and broader meanings for 
the words of the Constitution, thereby strengthening and applying 
its spirit in a progressive way to new conditions, as it is to check the 
legislative in any attempt to override or destroy the fundamental 
law. It is in this task of protecting the Constitution from both 
extremes and thereby preserving the even pace of progress, that 
the American judiciary fulfills its highest duty. 

"A Constitution," says Governor Baldwin, "is the garment 
which a nation wears. Whether written or unwritten, it must 
grow with its growth." He aptly quotes Mr. Bryce, "Human 
affairs being what they are, there must be a loophole for expansion 
or extension in some part of every scheme of government; and if the 
Constitution is Rigid, Flexibility must be supplied from the minds 
of the Judges." * 

Justice Holmes of the Supreme Court has well expressed the duty 
of the Judge in interpreting the Constitution, — "But the provisions 
of the Constitution are not mathematical formulas having their 
essence in their form; they are organic, living institutions trans- 
planted from English soil. Their significance is vital, not formal; 
it is to be gathered not simply by taking the words and a dictionary', 
but by considering their origin and the line of their growth." 
Gompers v. U. S., 233 U. S. 604; 19 14. And even in cases involving no 
constitutional point, the courts must show statesmanship of a high 
order. What is the meaning of the words "combination in restraint 
of trade" as used in the Sherman Act? The Court's answer to this 
question determines whether the immense legal machinery of the 
Government shall be directed against all forms of combination, 
good and bad alike, and the most effective and useful methods of 
conducting business thereby hindered and destroyed, or whether 
on the other hand, the Court shall make more clear and definite 
the real meaning of the legislator and distinguish between those 
combines which are predatory and those which are natural and 
healthful in their tendency. 

The constitutional question "what is commerce?" as we have 
seen in the chapter on the "Powers of Congress," is one which the 
Court may answer in such a way as to extend the control oi Con- 
gress over a great part of the business of the country or to destroy 
that control completely, and leave business subject to the 48 State 
legislatures. Even in the problem, -what is a "reasonable and 
just" railway rate?— the Court's answer may give a large profit 
to the carrier or may cut that profit in half or destroy it altogether 
and thereby increase or diminish the value of railway property 
1 S. E. Baldwin, The Anwridit: Judii :\:rv. page 84. 



278 THE NEW AMERICAN GOVERNMENT 

by hundreds of millions of dollars^ What is railway "discrimina- 
tion? " Upon the Court's reply may hang the chances for immense 
wealth for some interests and the smothering of others, the imme- 
diate and rapid rise of whole communities and districts and the slow 
decay of others; — cities may grow or decline accordingly as the 
judiciary interprets the long and short haul clause of a commerce 
law to mean one thing or another. 

When is a drug "misbranded" or falsely labelled? If the Court 
declares, as we have seen that it did, that misbranding is a mis- 
statement as to the ingredients actually used in a drug compound, 
then the consumer is only protected against fraud in ingredients; 
if the Court decides, as it did, that "misbranding" does not include 
false and deliberate misstatement on the label as to the curative 
powers of the drug, the patent medicine fraud continues unabated 
until Congress is forced to make its intention emphatically clear 
by the Shirley Amendment. 

Early Enlargement of the National Powers by the Court. — Men- 
tion has already been made of the court's great influence in estab- 
lishing the power and authority of the National Government upon a 
secure footing, early in its history. The patriotic foresight of this 
policy can only be appreciated by those who understand the 
centrifugal forces which were at work to disrupt the new govern- 
ment and the vital importance of firmly entrenching the national 
authorities in the respect and loyalty of the people. A weak 
National Government in the first twenty years following 1789 would 
have inevitably meant the rapid disintegration of the union and 
its annexation by foreign powers. It was the work of the Court to 
rehabilitate the nation legally and to express in law that dream of 
union which the constructive genius of the great Federalist states- 
men had revealed to the people. The Court did this by giving to 
the national authority the benefit of every doubt in the interpreta- 
tion of the Constitution. No provision in the document had been 
made for the acquisition of new territory. Yet without this power, 
we could not enlarge our boundaries nor acquire Louisiana, which 
opened up the interior and made us a continental power. Justice 
Marshall declared that the Constitution confers the necessary 
authority in the powers of making war and concluding treaties. 

Does the Constitution protect charters of corporations against 
State action? Again the Chief Justice sought to establish national 
supremacy by accepting Webster's claim that the charter was a 
contract, and as such, subject to the protection of the Constitution, 
Article 1, Section 10, providing that no State should make any law 
violating the obligation of contracts. Could a State tax the notes 
of the United States bank? Here the supremacy of the Federal 
Government, when questioned, is firmly asserted by the Supreme 
Court and the general principle established that the agencies of 
national power are exempt from State interference, whether by 
taxation or otherwise. In all of these and countless other decisions 



THE FEDERAL JUDICIARY 279 

the Court showed its power and willingness to vitalize the authority 
of the new union and to protect it from those disintegrating in- 
fluences which we now see were all the more insidious for being 
masked under the patriotic title of "State's Rights." 

Is the Federal or the State power supreme in matters relating to 
national trade and taxation? Here again Chief Justice Marshall, by 
his decision in Brown v. Maryland, 12 Wheaton, 419; 1827, re-asserts 
the control of the National Government and its freedom from 
State interference in regulative matters. The State was forbidden 
to tax national commerce, because such a levy would hinder and 
destroy the exercise of the national power of regulation. Does the 
word " commerce" as used in the Constitution, include only the 
goods which pass from State to State in trade? If so, the power of 
Congress to regulate interstate commerce is limited to the control 
of these goods. Once more, Chief Justice Marshall, in the Brig 
Wilson v. U. S. extends and fortifies the national authority by hold- 
ing that commerce includes navigation and vessels as well as the 
goods carried. Our present laws for the protection and safety of 
shipping are based on this broad statesmanlike rule. 

These few instances show not only the immense scope of the 
Federal judicial powers and their close, intimate relation to business 
development but especially the Court's highest duty as a steadying 
factor in the progress of the nation. This influence like a great 
fly-wheel takes up the momentum of the government policy and 
carries it over the dead centers of the machine while it also catches 
the whims and spurts of power and steadies them to a more con- 
stant pace. The result is progress. 

Present Organization. — The first Judiciary Act w T as passed in 
1789, followed by a number of later laws all of which were revised 
and codified by the general Act of March 3, 191 1. This provides for 
the following organization: The Supreme Court, with a Chief 
Justice and eight Associate Justices, any six of whom constitute a 
quorum. The Chief Justice is paid $15,000 annually, the other 
justices $14,500. A marshal, a clerk, deputies, reporters, etc., are 
appointed by the Court. The Supreme Court has been the idol of 
the American legal fraternity and has been copied by foreign 
countries in establishing Federal forms of government. Its prestige 
and high standing have come largely from that spirit of statesman- 
ship which we have scon is especially required in the American 
court system. Its jurisdiction includes "original" cases, being 
those which may be brought immediately before it in first instance. 
such as cases affecting ambassadors oi foreign powers, cases in 
which a State is a. party,' and the "appellate," making up the 

1 The Eleventh Amendment. Article 3 of the Constitution provides thai the 
Federal Judicial Power shall extend "to controversies between a State and cit- 
izens of another State." The State of Georgia was sued for non payment oi a 

debt under the above clause, and the State attorney urged in defence that the 
State could not be sued without its consent. The case coming to the Supreme 
Court, that tribunal decided against the Stale in favor of the private creditor. 



280 THE NEW AMERICAN GOVERNMENT 

larger proportion of its duties, and including appeals and reviews 
brought to it from the Courts below. The nine Circuit Courts 
of Appeals each consist of three judges with a salary of $7,000. 
Those tribunals were established in 1891 to relieve the Supreme 
Court of its burden of business by hearing appeals from the lower 
courts. At the time the change was made cases remained on the 
docket for three years before they could be argued. The judgment 
of these Appeal Courts is final except in a narrow range of cases, but 
they may certify any important disputed point to the Supreme 
Court for decision, or the latter may on application review the 
opinion of the Court of Appeals. 

District Courts. — The area of the United States and Alaska, 
Hawaii and Porto Rico is divided into 83 judicial districts with a 
district judge in each and in certain districts two or three judges, 
each with a salary of $6,000 yearly. The court officers of each 
District Court are appointed by the Court. All the jurisdiction 
which was formerly held by the Circuit Courts, now abolished, has 
been transferred to the District Courts, which makes them tribunals 
of first instance in Federal cases. The Judge in each district ap- 
points a commissioner who acts as a sort of justice of the peace in 
criminal cases. 

The United States Court of Claims consists of five judges with a 
salary of $6,000 except the chief justice who receives $6,500. The 
court sits at Washington and considers all civil claims against the 
United States. A lump sum is annually appropriated by Congress 
to pay the judgments awarded against the Treasury by this Court. 
This formality is necessary because the Constitution, Article 1, 
Section 9, declares that, "No money shall be drawn from the 
treasury but in consequence of appropriations made by law." 

The Court of Customs Appeals is composed of a presiding judge 
and four associates receiving a salary of $7,000 yearly. The Court 
sits in any of the judicial circuits and has exclusive jurisdiction over 
appeals from the Board of General Appraisers of the Treasury 
Department as to the value of imported goods and the rate of duty 
imposed thereon. 

The Commerce Court consisted of five judges assigned by the 
chief justice of the United States from among the circuit judges for 
a period of five years. Its jurisdiction included appeals from the 
rulings of the Interstate Commerce Commission and cases brought 
for the enforcement of the orders of the Commission. It was 
abolished in 19 13. 

The judges in all the Federal courts are appointed by the Pres- 
ident with the advice and consent of the Senate, and serve during 
good behavior. In the territories and dependencies there are courts 

(Chisholm v. Georgia, 2 Dallas, 419; 1793.) The States' Rights Party which was 
strong in our early history secured the adoption of the nth Amendment which 
prevents suits from being brought in the Federal Courts against any State by 
the citizens of another State or by foreigners. All of the States have made 
provision by which such suits may be brought in their own courts. 



THE FEDERAL JUDICIARY 28 1 

created by special acts of Congress; these bodies are not a part of 
"the judicial power of the United States" as provided by Article 3 
of the Constitution, neither do the detailed provisions of that 
Article apply to them, such for example as the tenure of judges 
during good behavior, etc.; their authority comes from the power of 
Congress to govern the territories and Congress can and has 
organized and abolished them at will, limiting their terms of office 
and providing for appeals from them to the regular Federal courts 
or not, as it pleased. 

The Supreme Court, being established by the Constitution, can- 
not be abolished by Congress, although the number of its members 
may be increased, and upon vacancies occurring, its membership 
may be reduced. The inferior courts, while provided for in a 
general way by the Constitution are largely the creatures of Con- 
gress. They may be reorganized, new courts created, or a whole 
class of courts discontinued, as was done with the Circuit Courts 
and the Commerce Court in 19 13. Probably it would be unconsti- 
tutional for Congress to abolish all the inferior courts, since this 
would deprive the people of the original jurisdiction of these lower 
courts, which the Constitution intended they should enjoy. 

Jurisdiction of the Courts. — In fixing the jurisdiction of the 
Federal courts the Constitution prescribes that this shall consist of: 

All cases arising under the Constitution itself. 

Under Federal laws and treaties. 

Cases affecting ambassadors, consuls, etc. 

Cases of admiralty and maritime jurisdiction. 

Those in which the United States is a party. 

Controversies between States. 

Between citizens of different States. 

Commenced by a State against the citizens of another State. 

Between citizens of the same State under land grants from 
different States. 

Between American citizens and foreign States, citizens or sub- 
jects. 1 

A second glance over this list of controversies shows that they 
include all the cases in which State partiality or bias might influence 
the decision if it were left to the State courts. It also includes t hose 
subjects which require the greatest uniformity in lecision in all 
parts of the country. 

Cases come into the Federal courts either by being started in the 
District Courts where a question of Federal law is concerned or 
because of the difference in citizenship of the parties, or by orig- 
inating in the State courts, under the State law, ami being carried 
from the Supreme Court of the Stale to the Federal Supreme 
Court on the ground that the State law conflicts with a Federal aet 
or the Federal Constitution. For example, the Minnesota rate 

1 In cases affecting ambassadors, public ministers and consuls, and cases to 
which a State is a party, the Supreme Court tias original jurisdiction. 



282 THE NEW AMERICAN GOVERNMENT 

cases 1 arose under a State law and the action of the Minnesota 
railway commission in lowering freight charges pursuant to that 
law. The railway companies concerned claimed that the State 
law was in conflict with the Federal Commerce Act and, after 
taking their case to the Supreme Court of the State, which decided 
against them, they appealed to the United States Supreme Court, 
which decided that the State law was valid until Congress or the 
Interstate Commerce Commission should make use of its regulative 
power. 

The Supreme Law. — The Constitution in Article 6, Clause 2 
defines the order of precedence of the law as follows: 

"This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made or which 
shall be made under the authority of the United States, shall be 
the supreme law of the land; and the judges in every State shall be 
bound thereby, anything in the constitution or laws of any State to 
the contrary notwithstanding." 

The Decision of Constitutional Points. — In passing upon the 
constitutionality of any act, State or Federal, the courts observe 
certain guiding principles, chief of which are the following: 2 

Any court may be called upon to decide the question of con- 
stitutionality, from the Supreme Court of the United States down 
to the Justice of the Peace in a country village. Whenever brought 
to its attention in such a way that the case must be said to turn 
upon the constitutionality of a given law or ordinance, such a court 
may properly decide the point. 

Nevertheless in all cases the court will avoid the point of con- 
stitutionality unless it is necessary to decide it; if the case can 
properly be determined upon some other grounds such a course will 
be followed. This policy is a natural one because the judges do not 
wish to go out of their way to attack the validity of a statute. 
Accordingly, if they find that the court has no jurisdiction in the 
case or that the law does not apply to the conditions before them, 
or if they have other reasons for making a decision without invali- 
dating an existing statute, they will take advantage of the other 
grounds for their decision. 

Those whose rights are not involved or affected by an act cannot 
ask the court to invalidate it. The law stands until some one whose 
rights are immediately concerned questions its validity. 

Not every law which is unwise or unjust is necessarily uncon- 
stitutional. We often hear that a law is invalid because it is taxa- 
tion without representation or because it is unfair or inexpedient or 
wasteful, but none of these defects renders the act unconstitutional 
unless it conflicts with the letter or spirit of some part of the 
Constitution. 

1 Simpsons. Shepard, 231 U. S. 352; 1913. 

2 These maxims are admirably set forth in Cooley, Principles of Constitu* 
tional Law, page 164. 



THE FEDERAL JUDICIARY 283 

If an act is constitutional in one part and unconstitutional in 
another the courts will declare invalid only that part which con- 
flicts with the fundamental law and will allow the rest to stand if 
possible. This is not possible where the remnant which is allowed 
to stand would be so far from the legislative intent and purpose as 
to be a clear violation of the will of the lawmakers. For example, 
the income tax of 1894 contained certain provisions which were 
valid and others which conflicted with the Constitution, but 
the Supreme Court concluded that if it allowed the valid parts to 
remain, the will of Congress would be entirely defeated and a 
grotesque tax law of which Congress would utterly disapprove 
would result. For this reason it declared the entire act uncon- 
stitutional. 1 

The presumption is always in favor of the validity of an act, a 
mere doubt or possibility of conflict with the Constitution is not 
sufficient. The benefit of the doubt will always be given to the 
legislator. If any reasonable construction harmonious with the 
apparent purpose of the legislature can be found which will render 
the intent of the act constitutional, such construction will be 
adopted by the court. 

As a general rule the courts will not impute illegal motives to the 
legislative authority; an unconstitutional purpose in legislation, in 
order to be so decided, must appear clearly upon the face of the 
act or from its terms. 2 

Federal Interpretation of State Laws. — Although the Supreme 
Court exercises the fullest freedom in passing on the constitutional- 
ity of a State act, it accepts without question the decisions of the 
State Supreme Courts as to the meaning of State laws and their 
conformity to State constitutions. It will not question their 
decision on these points because it is not an interpreter of State 
laws nor of State constitutions further than their harmony with 
the National law. If it did not observe this rule it would imme- 
diately be plunged into an endless maze of purely local questions 
which would soon overburden the Court and lead it far from its 
original purpose and object. In Chicago, Milwaukee and St. Paul 
Railroad Company v. Iowa, 233 U. S. 334, 19 14, a question arose 
as to the exact powers of the Iowa Railroad Commission. The 
company, objecting to a ruling of that body, claimed that the 
Commission had no power to issue the order in question, to which 
the Court replied, "But the obvious answer is that what is required 
by the law of Iowa has been determined by the supreme court of 
that State. That court, examining the various provisions oi the 
Iowa Code which have relation to the matter, has held that the 
order was within the authority of the Railroad Commission." A 
long line of decisions has established this principle. Of the many 

1 Pollock v. The Farmers Loan, 158 U. S. 601; 1895, 

8 See also the discussion of those rules in Story, Commentaries on //••< I 

slitutioii, sections 399 and (T. 



284 THE NEW AMERICAN GOVERNMENT 

questions which arise between citizens of different States and in 
which the Federal District Courts under the Constitution have 
jurisdiction, the large majority are matters of State law. In all of 
these the District Courts follow the interpretation of the State 
supreme tribunals as a matter of course. 

Execution of Court Judgments. — The decrees and decisions of 
the Federal District Courts are executed, if necessary, by the marshal 
of the district. If he is opposed by force application may be made 
for Federal troops to carry out the court decision, although such a 
contingency never occurs, because of the general respect for Federal 
tribunals. The refusal to obey a court order in an equity case 
differs from that in an ordinary law case in that equity writs are 
usually commands to perform or not to perform a certain act; 
disobedience is contempt of court and leads to the immediate arrest 
and fine or imprisonment of the offender. 

Advisory Opinions. — The Federal courts do not give opinions on 
the constitutionality of any bill or any other question until the case 
actually comes before them in which the rights of interested parties 
are concerned. Washington, in his first administration, asked the 
advice of the Supreme Court as to the rights and duties of the 
United States under certain of its treaties and under international 
law, but the Court answered that it could not give a decision until 
the case came before it. The courts of most of the States follow 
the same rule, except that of Massachusetts which is sometimes 
consulted by the governor or the legislature when a new measure of 
doubtful constitutionality is about to be passed. The reason given 
for the rule against advisory opinions is that the courts are not 
administrative, political or advisory bodies in any sense of the 
word. Their duty is to uphold the Constitution and the laws by 
applying them to actual cases. Any extension of this power to 
include the giving of advice to the legislator or the executive, it is 
feared ; might bring the courts into political agitation and undesir- 
able partisanship. While there may be some force in this view the 
advantages of such a court opinion would far outweigh its dangers. 
It must be remembered that the courts would not be called on to 
advise as to the expediency or wisdom of a proposed law but only to 
inform as to its validity. How much uncertainty, loss of time, 
money and energy might be saved to the community if the doubtful 
point of constitutionality could be cleared up before the passage of a 
bill instead 3 or 5 years later! The real objection of greatest weight 
would be the burdening of the courts and the necessarily short time 
in which they would have to render their advisory opinions. The 
Court of Claims may be consulted by a department head, as to the 
validity of a department debt, and the Supreme Court of the State 
of Washington may be consulted by the Secretary of State as to 
the constitutionality of an Initiative proposal which is about to be 
submitted to the people. 

The Judicial Power to Declare Laws Unconstitutional. — There 



THE FEDERAL JUDICIARY 285 

is no doubt that lawyers originally were divided on the question 
whether the acts of Congress could be declared invalid by the 
courts. Some of the Constitution framers believed that the courts 
had such a power, and the reason for this belief is both strong and 
clear. In the minds of many of the framers, the new government 
that was being formed, was based on an agreement between the 
States, and if it exceeded its powers under the agreement it might 
usurp those of the States. They felt the need of some authentic 
interpretation of the agreement which would uphold those laws 
properly passed and declare invalid those which exceeded the 
agreement. Naturally the courts, being the only proper authority 
to interpret the laws, must measure each law by the Constitution 
and declare void and of no effect every measure which transcended 
the proper powers of the new government. Before 1789 several of 
the State courts had revised or anrulled legislative acts which they 
considered contrary to the State constitution, and had pointed the 
way for similar action by the national Supreme Court. In Holmes 
v. Walton, decided 1780, the Supreme Court of New Jersey held 
invalid an act passed by the legislature during the Revolution, which 
provided that goods of the enemy might be seized and confiscated 
after trial by jury. The Court apparently considered that a jury 
of six men was not a jury as commonly understood in the colony up 
to that time. Upon an attempt being made by petition to the 
Assembly to have the legislature overthrow the action of the 
Court, the Assembly passed a law ratifying the Court's action and 
declaring that the judges on demand of either party should grant a 
jury of twelve men. This precedent must not be over-estimated in 
importance but it is apparently a clear annulment by the Court of a 
legislative act on the ground of unconstitutionality. Later cases 
in other States established the principle more completely. In the 
National Government it was confirmed by Chief Justice Marshall in 
Marbury v. Madison, 1 Cranch, 137. President Adams, in the last 
hours of his administration, had appointed several local justices of 
the peace in the District of Columbia, among them William Mar- 
bury, but the new Secretary of State, Madison, under the incoming 
administration of Thomas Jefferson, refused to turn over the 
official commissions of the justices of the peaee, holding that 
Adams had made the appointments at the last moment in order to 
perpetuate the power of his friends in office. The appointments 
had been confirmed and the commissions signed and sealed and in 
the possession of the Secretary of State. The constitutional 
question was: — Could the Justices demand from the Secretary oi 
State their commissions and was he bound to deliver them? Mar- 
bury asked the Supreme Court to issue a writ of mandamus to the 
Secretary ordering him to deliver the commission. The Judiciary 
Act of 1789 authorized the Supreme Court to grant a mandamus and 
the Court held that under the law the appointment was legal and 
Marbury was clearly entitled to the writ,- but was the law in 



286 THE NEW AMERICAN GOVERNMENT 

accordance with the Constitution? » A close examination showed 
that the Constitution gave the Supreme Court appellate jurisdiction 
in the case whereas the writ of mandamus could be used only in 
original jurisdiction. The question was squarely presented then, — 
could the Court make use of a part of original jurisdiction in a case 
which the Constitution classed as appellate? To this Marshall 
answered that the Constitution was supreme and the law must be 
regarded as of no effect in so far as it violated the Constitution. 
"The Constitution is either a superior paramount law, unchange- 
able by ordinary means, or it is on a level with ordinary legislative 
acts, and like other acts is alterable when the legislature shall please 
to alter it. If the former part of the alternative be true, then a 
legislative act contrary to the Constitution is not law ; if the latter 
part be true, then written constitutions are absurd attempts on 
the part of the people to limit a power in its own nature illimitable. 
Certainly all those who have framed written constitutions con- 
template them as forming the fundamental and paramount law of 
the nation, and consequently, the theory of every such government 
must be, that an act of the legislature, repugnant to the Constitu- 
tion, is void. This theory is essentially attached to a written 
constitution, and is, consequently, to be considered by this court as 
one of the fundamental principles of our society. . . . It is emphat- 
ically the province and duty of the judicial department to say what 
the law is. . . . If two laws conflict with each other, the courts 
must decide on the operation of each." From this momentous 
decision down to the present time the power of all our courts, both 
National and State, to declare invalid a law conflicting with the 
Constitution, has never been successfully disputed. The various 
movements which are now on foot to limit this authority are 
based on the thought that it has been honestly used, but in such a 
narrow way as to block the enactment of urgently needed legis- 
lation. 

In the view of Professor Charles G. Haines x our attitude towards 
the Courts and towards their control of legislation is largely de- 
termined by our general views of government, — if we believe in the 
theory of checks and balances, to protect property rights and the 
interests of minorities at whatever cost, we shall uphold judicial 
control of legislation; but if we lend our support to the principle 
of "popular rule" espoused by the more advanced factions and 
parties in national politics, we shall uphold rather the principle of 
legislative and executive supremacy, and favor some means of limit- 
ing the judicial veto. 2 The mildest of these is the provision of the 

1 The American Doctrine of Judicial Supremacy, Macmillan, 1914. 

2 Not a little of the popular hostility to the courts is caused by legislative 
cowardice for which the judiciary is in no sense responsible. Both Congress and 
the State legislatures frequently pass laws that are either unconstitutional or 
unclear knowing that the odium of declaring them illegal or of defining their 
real meaning will fall not upon their authors but upon their interpreters. This 
is now so frequently done as to be a recognized legislative custom. 



THE FEDERAL JUDICIARY 287 

Ohio Constitution of 191 2 that decisions holding a State law un- 
constitutional must be concurred in by six of the seven judges of the 
State Supreme Court. The more radical proposals are the recall 
of judges and the recall of judicial decisions, described in the Chapter 
on Direct Legislation. 

Practical Operation of the Federal Judiciary System. — Our 
American courts are passing through an era of searching criticism; 
the trust promoter, and the radical labor leader, alike, are dissatisfied 
with judicial rulings. It is also complained that the judges' deci- 
sions lag too far behind public opinion, a strong current of popular 
sentiment is demanding a cheaper, quicker and simpler method of 
procedure, and there are sporadic proposals for a recall which shall 
place it in the power of the people by majority vote to oust from 
office any judge or other official at any time. The judicial system is 
about to undergo a revision and reorganization in order that it may 
reflect more accurately and helpfully the business and social develop- 
ment of our period. The more important criticisms of our system 
may be divided into two general classes; first, that the judicial process 
is so slow and costly as to be a luxury for the rich. There is much 
truth in this charge and it applies not only to the Federal courts 
but to those of the States as well. England and the Continental 
countries have far surpassed us in the admirable simplicity of their 
court procedure. A few simple examples may suffice to point the 
need for a change in the American system. An unimportant civil 
case involving an action for enforcement of a contract or for damages 
in case of a broken contract usually requires from one to two years 
for its decision in the lowest court of most large American cities. 
It may then be appealed to an intermediate court in the State and 
another decision had in a year to a year and a half. It may then 
proceed to the Supreme Court of the State if the amount involved 
is sufficiently large and may there be decided in from one to two 
years time, making a total period of from three to six years from the 
start of the suit to its final decision'. 

If it be a Federal case brought in the United States District Court 
in the first place the time required for the first decision may not exceed 
six months although it may go much higher, the opportunities for 
continuance upon the request of either side being enormous and 
readily granted by the judges. If then appealed to the Circuit Court 
of Appeals another year or even two may be required, and if the 
case may under the Federal law be taken to the Supreme Court ii 
would there rest upon the docket in the ordinary course oi events 
for two years or perhaps three before a final decision was had. This 
calculation makes no allowance for mistakes on the part o\ the at- 
torneys in pleading or in the manner o\ bringing suit. Such mistakes 
are naturally quite common and therefore should he added to the 
total amount of time required in reaching a decision. For these 
reasons a citizen whose rights are injured and who appeals to the 
Federal courts is fortunate if his case reaches a final decision within 



288 THE NEW AMERICAN GOVERNMENT 

six years. The possibilities are stilt more unfavorable where the 
case enters the State courts first and is appealed from them to the 
Federal courts. , 

As an excuse for this unfortunate condition the small number of 
courts is pointed out, together with the size of the country, the num- 
ber of cases coming up for decision, and the fact that each decision 
in the Supreme Court must be by the entire body. None of these 
reasons is sufficient to excuse the costly, time-consuming and business- 
unsettling delay in the decision of important questions. The com- 
munity would gain inestimably by paying the necessary amount for 
the establishment of additional tribunals, and by a thorough re- 
organization of the rules of pleading and procedure to cut out the 
favorite means of causing delay. 

Proposed Changes in the Supreme Court. — Since much of 
the delay occurs at the top of the system, it has been pro- 
posed that the Supreme Court might readily be reorganized 
along the lines of foreign courts of appeal by dividing it into sec- 
tions, each section having the decision of cases in a particular 
field of law, such as criminal appeals, admiralty law, patents and 
copyrights, administrative law, etc. If our Courts were so divided 
and the number of judges increased accordingly there can be no 
question but that litigants would receive a much more rapid and 
cheaper form of justice than at present, and in addition they would 
be apt to obtain a decision based on better legal and business prin- 
ciples than at the present time. The reason is simple, under our pres- 
ent system the Supreme Court must familiarize itself with all branches 
of the law, even in minute details. This is practically an impossible 
task. If for example the important questions growing out of the 
commerce clause of the Constitution could be decided by the Su- 
preme Court through a section on interstate commerce law, the op- 
portunity for specialization in commercial problems would soon en- 
able this section to handle such cases in a minimum of time. The 
law so interpreted would be not only more expeditiously and cheaply 
pronounced but it might be better law. Serious objection has been 
made to this proposal on the ground that it destroys that general 
uniformity of interpretation of the law which was one of the purposes 
in the establishment of the Supreme Court. It is claimed that if 
the Court were divided up into sections, each section would sooner 
or later develop principles of interpretation varying from those of 
the other section, and that the very purpose of having a single 
Supreme Court is to prevent this variety of principles. There is 
much force in this objection, but it must be remembered that the 
division into sections by no means involves a loss of authority by 
the entire membership of the Court over the decision of each of the 
sections. It might readily be provided as in other countries, that the 
full Court might examine and revise the decision of any section of 
any case, before its publication. The sentiment in favor of re- 
organization of the Supreme Court is slowly but steadily growing 



THE FEDERAL JUDICIARY 289 

and it may be hoped that the business community may soon enjoy 
the advantages which such a reorganization would insure. 

Our Federal procedure would be greatly hastened also by the ap- 
pointment of more judges in the districts. In some of the jurisdic- 
tions the docket is so overburdened that cases cannot be called for a 
year after they are filed. A material increase in the number of judges 
would at once remedy this difficulty. The abuse of " continu- 
ances " is also a serious block to quick procedure. For these both the 
attorneys and the courts are responsible. It is now customary even 
in the Federal courts for the judge to grant one and often two con- 
tinuances or postponements on the application of either side, with- 
out serious question. The attorneys, knowing this, make use of 
it not only to enable them to conduct their cases elsewhere, but also 
to delay and harass the opposing party. A successful attorney 
with a large practice is sometimes obliged to ask for postponement 
because of conflicting court dates, but a more careful examination 
into these postponements and a flat refusal of the courts to allow a 
continuance beyond a certain reasonable period would remove the 
most serious cause of the loss of time. 

A Simpler Court Procedure. — In the second place, lawyers and 
laymen alike agree that the procedure in most of our courts is need- 
lessly complicated, and inordinately time-consuming. President 
Taft from his judicial experience was well acquainted with these 
weaknesses and made it his special effort to remedy them. Pursuant 
to his suggestion, a committee of the Supreme Court was appointed 
which revised and simplified the entire method of pleading and con- 
ducting equity suits in all the Federal courts; a similar revision is 
contemplated for the ordinary law cases. Most of the needless com- 
plexity in the starting of suits and in the nature of the exact pleas to 
be entered has descended to us from English prodecure of two hun- 
dred years ago — while in the land of its origin, this same procedure 
has long been abandoned for simpler, more convenient forms. In 
this respect our Federal courts are far more advanced than those 
of the States. A commission appointed several years ago by the 
Pennsylvania Supreme Court to investigate legal procedure reported 
that over 50% of the recent cases in the courts of that State had been 
decided on points of practice that is, on questions of form in the meth- 
ods of bringing suit. The tendency to seize on trivial detail or minute 
discrepancies in statement or form has been allowed to run riot 
through our procedure with appalling cost to the community and 
to the popular respect for the courts. Under the continued stimulus 
of Mr. Taft and with the co-operation of the American Bar Associa- 
tion strong efforts are now being made to divest procedure oi its 
unnecessary formalities and delays. Nothing could be done which 
would so effectually rehabilitate the judicial system in the trust 
of the people. In the last analysis we do not measure the value of 
our tribunals by the method of their choice, whether appointed or 
elected, nor by their qualifications, nor their salaries, nor by the 



290 THE NEW AMERICAN GOVERNMENT 

recall, nor even alone by their erudition and knowledge of the law, — 
rather do we believe "by their fruits ye shall know them." If the 
courts can give us broad, statesmanlike interpretation of the law 
through a quick, simple and cheap method of procedure, it matters 
not whether they are appointed nor whether we can recall them or 
their decisions. And if on the other hand we adopt every modern 
device to make them sympathetic with the popular will but allow 
the technicalities of a by-gone age to remain, encumbering their 
machinery, their real work is not done. 

A third and more serious criticism of our court system is that it 
protects the powerful against the weak, and is largely a means of 
maintaining and fortifying the interests of the conservative classes 
exclusively. This criticism while untrue in many cases has sufficient 
basis to require examination. The legal training of the judge from 
the time he starts out as a practicing lawyer is such as to attract his 
attention to the sacredness of property; his mind is chiefly occupied 
with the means of upholding property rights. In examining the 
historical reasons for our existing law, he is inclined to look upon the 
past with much greater care than upon the natural growth of the law. 
As a result his whole professional education makes him intensely 
conservative unless by temperament his natural instinct favors pro- 
gressive changes. He believes that ignorance, poverty, crime, and 
industrial inefficiency are largely the result of willful neglect of their 
own interests on the part of those concerned, and he feels that " those 
concerned" are the pauper, the criminal and the loafer. A profes- 
sion whose members are trained by long environment to this view of 
life must naturally tend to sympathize with what is, rather than to 
seek new interpretations of the law in the interest of less influential 
classes of the people. 

It is no criticism of the judge to say that his education has molded 
his habit of mind, since the same is true of any other professional 
or business class, yet the fact is a serious weakness in our judicial 
system, and has created a strong feeling on the part of the lower 
classes that the judiciary is under the influence of those who also 
control the greatest property interests. Such a control if it exists 
is not the result of a deeply laid plot or scheme but rather of this 
psychological fact of natural reaction against change, caused by the 
environment and training of the judge's mind. This conservative 
bias must be changed, not by a change in the appointing power, 
not by a recall, nor by any other device which may threaten the 
independence of the judges, but rather by a change in the method 
of training men for the bar. Since the judge is first a lawyer, it is 
the education of the lawyer which must be made to include a knowl- 
edge of the causes and nature of social and economic growth. If 
our law is to be progressive it must be interpreted by men trained 
to see the necessity of legal growth and life. Here again some 
foreign systems have developed more rapidly than our own. The 
German government educates its judges with care, giving them a 



THE FEDERAL JUDICIARY 29 1 

thorough course of training in lesral, social and economic affairs. 
If the members of our courts in this country were so educated 
there would be little reason for complaint of class partiality. 

There is no doubt that these complaints have been much over- 
drawn. The radical agitator is not the only critic of the bias of 
the Federal courts; the market manipulator who may have schemes 
of stock jobbing which are interfered with by the decisions of the 
courts also complains bitterly of the judge's influence in unsettling 
" conservative business interests." The importance of these criti- 
cisms from the two opposite extremes of the business world must 
be duly discounted. If our judicial system were simplified, our 
court procedure curtailed and expedited, and the legal training 
of the attorney were made more social in character we should have a 
national judiciary second to none. 

The Injunction. — The demand cf the labor organizations for a 
change in the law governing injunctions is due to certain abuses 
in the granting of this writ which have crept into our court prac- 
tice in the last few decades. An injunction is a command or order 
issued by a court, requiring or forbidding certain persons to per- 
form certain acts. The purpose of the writ or order is to prevent 
irreparable damage to property or to the public welfare. The court 
upon being convinced that a grave danger of this damage exists, 
instead of waiting until the damage has occurred and then punish- 
ing the culprit — a course that would uphold the law but would 
not save the public or the property owner from injury, — prefers 
rather to intervene before the evil is wrought and by saying to 
the wrong-doer, "Thou shalt not," bring him to a sober sense of 
what he is about to do and remove all doubts as to his legal re- 
sponsibility if he persists. The idea is a practical one and has been 
applied most frequently and successfully in other fields outside the 
realm of labor controversies. 1 But in labor questions many of the 
courts, being ultra-solicitous to protect property rights, have al- 
lowed themselves to be led into an extreme use of the writ and have 
thereby brought on a reaction which threatens seriously to curtail 
its usefulness. The excessive granting of restraining orders and 
injunctions is complained of because it is claimed (a) they arc 
issued too hastily without hearing both sides; (b) they do not 
describe accurately and fully the precise acts forbidden; (c) when 
so used as a weapon by the employer and violated by the worker 
the latter is subject to fine and imprisonment without a jury 
trial. 

(a) The hasty issue of restraining orders, or temporary injunc- 
tions is especially objected to in that it prevents the persons re- 
strained from presenting their side o( the controversy before the 
order is issued. A judge may be applied to even at his home, by 
the attorney for one side, with a sworn statement that immediate 

1 Most of the injunctions issued by the courts are in no way connected with 
labor questions. 



292 THE NEW AMERICAN GOVERNMENT 

and irreparable injury is about to be" inflicted on his client's prop- 
erty. No testimony need be taken from the other party nor need 
the latter even be summoned, but if the judge feels after hearing 
the arguments of the first party that there is reasonable ground to 
expect such injury, unless immediate steps are taken, he may 
grant a temporary restraining order which may run for weeks or 
even months before an argument is heard upon both sides. If at 
that time the order is found to have been unnecessary and is can- 
celled, the defendant has nevertheless suffered a serious disad- 
vantage and has at least been placed under a stigma which has 
unjustly prejudiced his side in the controversy. "But" say the 
friends of the present system, "it is no injustice to be commanded 
not to do an illegal thing. The courts do not enjoin the laborer 
from doing what he has a right to do." Unfortunately they very 
frequently do so, however, and it is this that gives force to the 
second objection. 

(b) The vagueness and inaccuracy of many restraining orders 
makes them far more sweeping and drastic than the law permits, 
and on appeal they must frequently be modified and brought within 
the law. But they are not changed until months after they were 
originally issued, and in the meanwhile every person mentioned in 
them is under the severe restraint of an illegal court order. This 
falls with special weight upon workmen in a labor controversy no 
matter how just or unjust may be their cause, and it is only ag- 
gravated by the "blanket" injunction which is addressed to the 
defendants, John Doe, Richard Roe, "and all other persons whom- 
soever, acting in conjunction with them." If the acts which the 
court or a single judge improperly and illegally prohibits are neces- 
sary to the successful conduct of a strike, such as peaceful persua- 
sion, then the court order is in effect a complete defeat of the 
strike in most cases. Many restraining orders even go further and 
forbid the strikers "and all other persons, etc.," from using their 
undoubted constitutional rights in connection with a labor contro- 
versy. In the Bucks Stove and Range case, 1 Samuel Gompers 
and others had established an illegal boycott against the stoves 
and other products of the Bucks Company and they were very 
properly forbidden from continuing it, but in its injunction the 
Washington court even went so far as to forbid them from referring 
to the controversy in print or in their public meetings — an order 
which later, on appeal, had to be modified since it denied the fre- 
dom of speech and of the press, as protected by the Constitution. 

(c) He who violates an injunction or restraining order is guilty 
of "contempt of court" and may be summarily punished by fine 
or imprisonment or both, without a jury trial. The court which 
has issued the original order, commands the arrest of the defendant 
and allows him to explain his conduct or produce evidence to show 

1 See Gompers v. Bucks Stove and Range Co., 221 U. S. 418, and Gompers v, 
U. S., 233 U. S. 604; 1914. 



THE FEDERAL JUDICIARY 293 

that he did not commit the act complained of. If from the testi- 
mony it appears that he is guilty, he may be allowed to apologize 
to the court and promise future obedience or in serious cases he 
may be imprisoned for a short time. These provisions are in them- 
selves most reasonable and lenient and cannot be criticized as 
severe, but when applied in labor cases, to the violation of hastily 
issued orders, they cast upon the defendant the reproach of violat- 
ing the law and of having a jail sentence hanging over him when 
in fact his action may have been well within his legal rights. Later 
the injunction may be changed or dissolved altogether by a higher 
court and the decision and sentence reversed, but henceforth the 
defendant is stigmatized as an anarchist or a criminal, regardless 
of the merits of the case. 

It was doubtless these considerations and the insistence of the 
labor unions which led Congress in 19 14 to include sections 17 to 
25 in the Clayton Act, and thereby regulate the whole question of 
Federal injunctions in labor controversies. These sections es- 
tablished a new set of rules governing such injunctions, as 
follows : 

No preliminary injunction may be issued without notice to both 
parties. 

No temporary restraining order may be granted without such 
notice unless it clearly appears from statements supported by affi- 
davit that an immediate and irreparable injury, loss or damage 
will result to the applicant before notice can be served and a hear- 
ing had. Further, such temporary restraining order must be en- 
dorsed with the date and hour of its issue, must be recorded in 
the office of the Clerk of the Court, and must state the damage and 
show why it is irreparable and why the order was granted without 
notice. 

Such temporary restraining orders expire in ten days, but may 
be renewed for a like period if good cause is shown and the reason 
for the extension must be entered on the record. 

Upon the granting of each restraining order without notice the 
question of the issuance of a preliminary injunction must be set 
down for a hearing with notice to both sides, in order that the 
whole question may be inquired into in the presence of counsel for 
both parties. 

Any party served with a restraining order without notice, may 
upon two days' notice to the applicant, appear before the court and 
move the dissolution or modification of the order, and a hearing 
must then be had. 

Any party applying for a restraining order or injunction must 
give security in such sum as the court may deem proper, for the 
payment of costs and such damages as may be incurred to the par- 
ties restrained by the order, in case it is later decided that such 
parties were wrongfully enjoined or restrained. 

Every injunction or restraining order must set forth fully the 



294 THE NEW AMERICAN GOVERNMENT 

reasons for its issuance and must describe in reasonable detail the 
acts restrained. 

In labor controversies no injunction or restraining order shall be 
granted unless necessary to prevent irreparable injury to property 
or to the property right of the party making the application, for 
which injury there is no adequate remedy at law. Such property 
or property right must be described particularly in the application. 

No such injunction or restraining order granted under the above 
conditions shall prohibit a strike, nor peaceful picketing, nor ad- 
vising others to strike, nor boycott, nor paying strike benefits, 
nor peaceful assembling for lawful purposes. 

Disobedience of a restraining order or injunction, if it constitutes 
also a criminal offence under the Federal laws, shall be punished 
as contempt of Court only after a jury trial if the defense de- 
mands it. 

But contempt committed in the presence of the Court or so near 
thereto as to distract the administration of justice, or disobedience 
to a Court injunction or order in a suit brought by the United States 
may be punished without a jury trial, as heretofore. 

No proceeding for contempt may be instituted against any per- 
son unless begun within one year from the date of the act com- 
plained of. No such proceeding for contempt is a bar to any 
criminal prosecution for the same act or acts. 

These provisions require little comment. They establish the 
right of trial by jury for the accused in most of the contempt cases 
which ordinarily come before the courts in labor disputes, while 
they also preserve to the Federal Government the right of summary 
punishment in proceedings which it may bring for the enforcement 
of its own laws. The provisions also enact into law what was for 
over a year the practice of the Federal Courts in granting restrain- 
ing orders, viz., to limit closely the duration of any order issued 
without a hearing of both parties. They remove the most substan- 
tial grievance of the persons enjoined, by providing that the enjoined 
parties may appear on two days' notice and ask a dissolution of 
the order. The new law thus effectually improves and modern- 
izes the granting of restraining orders, and brings them within 
limits which are fair and reasonable to all concerned. 

It must be remembered that an injunction is preventive and that 
as such it has the inestimable advantage of preserving property 
and keeping many people out of jail who would otherwise be placed 
there by the criminal law because of their hasty violent acts. No 
amount of criminal prosecution will restore the factories, buildings 
and rolling stock burned by rioters — this property is a dead loss 
to the community even though its owners are able to recover 
damages from the county government for failure to protect their 
rights.* The proper measure is not to prosecute but to prevent and 
avoid the injury and yet to do so in a way which will preserve also 
the full rights of both parties. It is this which makes the injunction 



THE FEDERAL JUDICIARY 295 

question well worthy of the careful study and attention that are 
now being given to it. 1 

REFERENCES 

The Administration of Justice in the United States, July, 1910, volume, The 
Annals of the American Academy. 

Reform in the Administration of Justice, March, 1914, volume, The Annals. 

S . E . B ald win : The A merican Judiciary. 

C. G. Haines : The American Doctrine of Judicial Supremacy. 

J. P. Cotton: The Constitutional Decisions of John Marshall. 

C. A. Beard: The Supreme Court and the Constitution. 

W. W. Willoughby: The Supreme Court of the United States. 

W. H. Tapt: Presidential Address American Bar Association, Proceedings, 
1914. 

The Clayton Act, October 25, 1914; Sections 17-26. 

QUESTIONS 

1. Resolved that the State courts could satisfactorily do the work now 
performed by the Federal courts. Defend either side of this question. 

2. How would you show that all classes of the people have an interest in 
the protection and development of the Constitution? 

3. Explain the role of the courts in this development. 

4. Why must the courts expand and extend the meaning of the words of 
the Constitution? 

5 . Cite some opinions of publicists on this poin t. 

6. Show by examples the Supreme Court's influence in protecting, limiting 
and expanding the national Constitution and laws. 

7. What does the Constitution provide as to the Federal Courts, their 
establishment, number of judges, tenure of office, method of choice? 

8. Could a Federal judge be discharged from office because he did not belong 
to the same party as the President? What does the Constitution say on this 
point? 

Sa. Outline all the steps necessary to remove a Judge from office. 

9. Outline the organization of the Supreme Court giving the number and 
salary of the judges and the offices and important employ6s of the Court. 

10. What is the difference between original and appellate jurisdiction? 
n. What is the Supreme Court's jurisdiction as fixed by the Constitution? 
11a. Could Congress pass a law changing the extent of the appellate jurisdic- 
tion of the Supreme Court? Why? 

12. How does the Eleventh Amendment change the jurisdiction of the 
Federal courts and why was it passed? 

13. If you wish to sue a State where would you bring your suit? 

14. Draft a report showing what inferior Federal courts have been established. 
by whom and under what authority in the Constitution, also the organization. 
number and general powers of each of the inferior courts. 

15. Attend a session of any Federal court and report on the proceedings. 

16. Why was the commerce court established? Why was it abolished and 
what was its practical usefulness? 

17. Could Congress abolish thecircuit courts of appeals? Why? 

18. Could Congress abolish all the inferior eourts? 1 Why? 

19. If Congress wished to lower the salary o( a certain Supreme Court 

l The best presentation of the case for ami against the injunction and its 

amendment is io be found in the hearings of the Sub-Committee oi the Senate 
Committee on the Judiciary at the second ami third sessions of the 6ad Con- 
gress, on House Resolution No. 13635, See also the hearings before the House 
Committee on the Judiciary in ion. 



296 THE NEW AMERICAN GOVERNMENT 

Justice could it do so by law or must it reduce the pay of all S. C. justices equally? 
What part of the Constitution governs this question? 

20. Could Congress constitutionally establish a special XL S. Court which 
would have jurisdiction over patent cases? Explain. 

21. Explain fully the constitutionality of Congressional acts providing as 
follows: 

(a) Abolishing the present Supreme Court. 

(b) Abolishing the present District Courts. 

(c) Reducing the number of members of the Supreme Court to 

seven upon the death or resignation of the next two Justices. 

(d) Providing that the Justices of the Supreme Court may be ap- 

pointed by the President without the consent of the Senate. 

(e) Providing that the President may discharge District judges for 

sufficient reasons which may be reported to Congress. 

22. Outline the general jurisdiction of the Federal courts. 

23. Explain how cases are usually brought to the Supreme Court. Examples. 

24. Explain some of the general principles guiding the Supreme Court in 
deciding on the constitutionality of a law. 

24a. A State statute of 1901 covering the subject of bankruptcy conflicts 
with an Act of Congress of 1898; which is supreme? Supposing the Act of Con- 
gress was passed in 1904, which would be supreme? 

25. How does the Constitution fix the order of the supremacy of laws? 
25a. A citizen of Pennsylvania, while employed on a trolley car in Trenton, is 

injured. Where could he bring suit if unwilling to go to Trenton? What provi- 
sion of the Constitution applies? 

26. Do questions of State law, involving no constitutional point, ever come 
to the Federal courts? Explain. 

27. How are the Federal courts guided in deciding on the meaning of State 
laws and State Constitutions and the powers of State officials? Why? 

28. In executing the decision of a Federal court the marshal is opposed by 
force. What can he do? 

29. Will the Supreme Court advise the President as to the constitutionality 
of proposed Federal acts? Why? Example. 

30. In a debate you desire to show that the Supreme Court has the con- 
stitutional power to declare both (a) Federal and (b) State laws unconstitu- 
tional. Outline your arguments. 

31. Explain the Court's position on this question in any decision which it 
has handed down. 

32. What are the causes of slow procedure in the Federal courts? How could 
this be remedied? 

33. How could action by the Supreme Court be hastened? 

34. Resolved that court procedure should be simplified to reduce the cost 
and delay in law suits. Defend either side of this question. 

35. Explain why the conservatism of the courts has been criticized and give 
your impressions of this criticism. 

36. What is an injunction? How is it usually granted? 

37. Explain the criticisms of the injunction as applied to labor cases. 

38. Will the courts grant an injunction forbidding the mention of a labor 
controversy in speeches and writings of either party? Why? 

39. Apply the Clayton Act to the following cases: 

(a) The employes of John Doe & Company demand higher wages, shorter 
hours and employment of Union men only. In order to secure their demands 
they strike and declare a boycott of the Doe Company's products sold in inter- 
state commerce, and seek to persuade the public generally not to purchase the 
Doe Company's goods. A heavy loss of business is threatened, and the Com- 
pany asks for an injunction on the ground that the combination is illegal under 
the Sherman Act. Decide the case and give reasons in full, with reference to the 
Clayton Act. 

(b) The Chicago and San Francisco Railway Company is asked to increase 
the wages of its engineers and conductors. It refuses. The employes strike and 



THE FEDERAL JUDICIARY 297 

appoint a committee on picketing, the duty of which is to persuade prospective 
employes not to seek work with the company. Can the Company secure an 
injunction under either the Interstate Commerce law or the Sherman Act? 
Reasons. 

(c) A Federal Court is asked by an interstate railway company to grant 
an injunction to prevent the destruction of its property. The Company pro- 
duces evidence showing a plan to destroy the company's property a year from 
date, and the proof that the property destroyed is worth $2,000. The Company 
asks for an immediate restraining order without notice to the opposite party, a 
labor union. What action will the court take and why? 

(d) A temporary restraining order is issued by a court without hearing both 
parties, but simply upon the evidence offered by the plaintiff. Immediately 
after the order has been issued the party restrained appears before the court and 
asks that the order be cancelled. What must the court do? 

(e) A witness in a law suit growing out of a labor dispute in interstate trade 
refuses to answer a question after being ordered to do so by the court. Upon 
being summoned for contempt of court he claims a jury trial. What will the 
court decide and why? 

(f) During the course of an interstate railway strike both parties to the 
dispute engage in violence, attacking each other with armed force. On applica- 
tion of the United States District Attorney the Federal District Court grants 
an injunction commanding both parties to cease and desist from such violence. 
Both parties disobey the Court order, and when summoned to be punished for 
contempt of Court, both claim a jury trial under the Clayton Act. Decide the 
case with citation of the Act. 

40. After reading the references and securing the opinion of an experienced 
attorney or judge, prepare an essay on the court system of your State and its 
chief problems. 

41. Lay the essay aside and attend a civil and a criminal trial in your county. 
Criticise and revise the essay. 



CHAPTER XVI 
THE STATE GOVERNMENT—THE CONSTITUTION 

New Duties of the State. — The growth of the National Govern- 
ment has not meant the drying up of State powers. During the 
last thirty years the duties and activities of the commonwealths 
have increased fully as fast as those of the Federal union. This 
increase is due to extensive changes in business conditions. It is 
noticeable that most of the questions with which the States now 
have to deal, have sprung from manufacturing industry. For 
example : 

The rise of urban districts and the various city problems; 

The tenement house; 

The conditions of workers in factories, stores and sweatshops; 

The adulteration of foods; 

The existence of a large, ignorant class in the population; 

The necessity for better means of communication; 

The unchecked license in the promotion and management of 
corporate undertakings; 

The development of class feeling between employers and em- 
ployes; 

The breakdown of the old system of caring for the poor and the 
criminal classes. These are all the result of new conditions arising 
from the business development of recent times. 

Influence of Mechanical and Scientific Progress on Government. 
■ — The chief source of this increase of State work is the progress of 
scientific inventions and discoveries. We Americans like to point 
to the influence of a single statesman or philosopher upon our 
political life, we like to say that Washington achieved Independ- 
ence and that Lincoln saved the Union, and it is true that in times of 
emergency and crisis the action of one man may commit the nation 
to a policy from which it cannot turn back. But if we consider 
ordinary periods of quiet, natural growth, we find that public 
policy is really determined by the influence of new inventions and 
scientific discoveries, remote as these may be from the field of 
politics. Science has done more to change our national life and 
policy than has the reasoning of political philosophers. Let us 
glance at one problem which has a special bearing upon the State 
governments at the present time, viz. — the conflict between Social- 
ism and Individualism. For generations the political philosophers 
of the world have been divided into two factions, the Individualists 
contending that the government should regulate nothing, but 
should leave all to the free action of the individual, — and the 

298 



THE STATE GOVERNMENT 299 

Socialists, claiming that it should manage everything, even own, 
control and operate all forms of business. In America, although 
this discussion has been carried on for a generation, we are not 
Socialists in principle; the real underlying force which has finally 
caused the increase in State regulation has been a series of me- 
chanical inventions. To-day we admit without question that that 
immense and ever-growing mass of tangled problems that we call 
"the industrial system," and which includes the factory question, 
the labor problem, the corporation problem and other questions of 
large scale production, may be traced directly bad: to the inven- 
tion of the steam engine. The mechanical discovery creates the 
social problem. The perfection of the passenger elevator, or "lift" 
has created the modern office building whereby a population equal 
to that of a small town may be gathered under one roof and the 
greater concentration of business within a city made possible. 
Similarly the invention of the trolley motor has built up the "subur- 
ban city" with all the changes in government and social life which 
accompany it. Equally interesting is the political influence of 
medicine. The growing idea that we should prevent disease rather 
than merely cure it has brought with it a fresh view of the State's 
duties to the people; it is to be traced to the germ theory in medical 
science. Finally the educators of the country have observed the 
effects of our mechanical and industrial progress, have seen the 
need of new kinds of school and college training and have broadened 
and extended the educational system to meet these demands with 
the result that the activity of the State governments has again 
expanded. In all these fields, scientific inventions have so changed 
the conditions of health, of education, of factory and of city life 
that the work of the State in regulating these questions has grown 
to enormous proportions. From a quiescent, almost decadent 
body the State has been transformed into a powerful and essential 
influence in the life of the people. Yet the people have not been 
convinced of Socialism as a general principle — they have taken 
little interest in the Socialistic movement; they simply demand 
that the State shall make itself more useful. The name " Socialism " 
is of course often used as a stigma to frighten the timid from any 
and every extension of State powers but it is safe to say that no 
useful change in government can be either adopted because it is 
Socialistic, or defeated because il is called such. The real in- 
fluence behind government changes is the determination of the 
people to make that immense body oi scientific inventions, dis- 
coveries and devices, which is now so rapidly coming to us, more 
serviceable and helpful to all classes, 

We shall consider first the constitution and machinery oi com- 
monwealth government; second and more important, what the 
State is doing for its people, its work. 

State Constitutions. — The State constitution, like that oi the 
nation, divides government into three departments, Executive, 



300 THE NEW AMERICAN GOVERNMENT 

Legislative and Judicial. The executive power, however, is divided 
among the Governor, the Senate, and a number of other officers, 
some of whom are appointed by him and some elected by the 
people. The legislature like Congress, is composed of two Houses, 
the Senate and the House of Representatives, and the judicial 
department consists of a Supreme Court and local county or district 
courts. The constitution is usually a lengthy document in which 
the people have written a great many real principles along with 
many more crude devices intended to cure political ills. Most of 
these latter provisions ought to be ordinary laws, but the people's 
distrust of the legislature has led them to fix its powers as narrowly 
as possible. For example, we find that the State constitution not 
ronly guarantees such fundamental rights as 

Freedom of Speech and Press, 

Religious Liberty, 
I Honest Elections, 

Jury Trial, 

Habeas Corpus, etc., 
but it goes into great detail to forbid special laws affecting a partic- 
ular person, place or corporation, granting special divorces, or 
giving to any person or corporation a special privilege; it also for- 
bids any law which increases the compensation of contractors or 
State employes after the service has been rendered, or which 
changes the powers and duties of any local government without 
first giving due notice to all who may be interested. 

Many constitutions also regulate the laws on corporations in 
such a way as to guard against legislative abuse. Some of them 
require the rights of shareholders to be fully protected, by cumula- 
tive voting or otherwise, and in general the greatest care is taken to 
prevent the predatory exploitation of corporate property by a 
small clique through majority control of the stock. 

The Amendment of the State Constitution. — Most of the consti- 
tutions provide that single amendments must be passed by the 
legislature at two successive sessions, and then referred to the 
people for approval. Some States require the legislature every 
ten years to submit to popular vote the question whether the entire 
constitution shall be revised by a convention. Ordinarily however, 
a total revision can be made only by a convention called for this 
purpose after the legislature has voted favorably and the project 
been approved by the people. Some of the States have a method 
of amendment which is practically impossible to follow, that is, 
two legislatures must first pass the amendment; it must then be 
submitted to the people at a regular State election for officers, and 
can only become valid if a majority of those who voted for officers 
at the election approve the amendment. This is impossible because 
in almost any election the average voter overlooks the question of 
amending the constitution. It is usually printed at the bottom of 
the ballot and the ballot is so large that the constitutional question 



THE STATE GOVERNMENT 301 

attracts no attention. Accordingly, it is most improbable that a 
majority of those voting will vote on the amendment at all and still 
more improbable that a majority can be secured favorable to it 
regardless of its merits. Such a provision exists in the constitution 
of Illinois, and in Professor James W. Garner's opinion, 1 it " makes 
the Illinois system of amendment one of the most archaic and 
cumbersome in the world, and has already retarded the progress of 
the commonwealth." It is coupled with the provision that a con- 
stitutional change may only be submitted to the voters once in four 
years. 

In Indiana the constitution provides that a majority of those 
voting at the election must favor the amendment and, furthermore, 
that an amendment, once submitted to the people, is before them 
indefinitely until either approved or disapproved by a majority; 
and, finally, that while an amendment is so pending no other 
change may be proposed. This has effectually bottled up all normal 
constitutional growth in Indiana for over fifty years. Some dec- 
ades ago a proposal was made for a change in the requirements of 
admission to the bar; this, being a constitutional amendment, was 
submitted to the people but failed to secure the sufficient attention 
to obtain a majority and accordingly has been before the people 
indefinitely, but meanwhile blocking the proposal of any other 
constitutional change. In some of the New England States noto- 
riously unequal systems of representation of the towns, in the 
State legislature, have existed since the Revolution; but owing to 
the impossibility of passing an amendment through the legislature 
to remedy this inequality, the States are still governed by mi- 
norities. 

Desirable Provisions as to Amendment. — When constitutional 
conventions are to be held it is highly important that the Constitu- 
tion itself should provide as fully as possible for the method of 
election, the organization of the body and other matters which 
affect its procedure; in general, the more completely this is pre- 
scribed in the Constitution, the better. Professor Garner shows 
the practical benefits which such a system offers in carrying out 
the popular will. — "The new provision in the New York Constitu- 
tion is a notable example. ... By the Constitution of that State 
the participation of both executive and legislature in constitution 
making is, as already remarked, reduced to a minimum. \o 
legislative act is necessary to bring the Convention into existence 
when once the people have voted in favor of revision. Moreover, the 
constitution itself fixes the number of delegates, the time and 
method of choosing them, their qualifications and compensation, 
the time and place of the meeting o\ the convention, the number 
of delegates necessary to make a quorum, and even prescribes some 
of the rules of procedure. 8 

1 American Political Science Review, February, 1 
-"The Amendment of State Constitutions," 



302 THE NEW AMERICAN GOVERNMENT 

In the States which have direct legislation, the people are allowed 
to propose amendments without the intervention of the legislature. 
A small proportion of the total number of registered voters, usually 
from eight to fifteen per cent, may sign a petition to which the pro- 
posed amendment is attached, asking that it be submitted to the 
approval of electors. If at the next election a majority approve the 
amendment, it then becomes a part of the constitution without 
legislative action. Severe criticism has been devoted by some pub- 
licists to the fact that the voters are constantly harassed by cranks 
and enthusiasts who want new features placed in the fundamental 
law. Yet of the two dangers the rigid, inflexible, unchanging con- 
stitution is certainly the greater. It tends to keep back the develop- 
ment of the government until some explosion of popular indignation 
takes place, when a hasty, ill prepared amendment may be passed, 
and thereby may become fastened on the government by the same 
difficulty of making a change. 1 

The Election Laws. — It is in the election laws of a State more 
than in the high-sounding phrases of its constitution, that the real 
political rights of the people are guaranteed. We may find the most 
flattering language of democracy in the fundamental document but 
if the laws do not secure the fair, just and accurate expression of the 
people's will at the polls, democracy becomes as sounding brass. 
The essential points in our State election laws are: 

The qualifications of voters, 

Registration, 

State regulation of party machinery to protect the voter, 

Nomination of candidates, 

The Ballot, 

Corrupt Practices Acts. 

The Right to Vote. — The State determines who may vote at both 
its own and national elections. The franchise requirements are the 
same for each office except that some States allow all property holders 
to vote for school and tax boards in the districts where their property 
is located. There is wide diversity in the qualifications of voters in 
different commonwealths. They all require electors to be 21 years 
of age and nearly one-half allow women to vote or will do so if pend- 
ing constitutional amendments are approved. Several require educa- 

view, February 1907, page 240. He also points out the value of having individual 
amendments proposed to the voters at a special election, as in New Jersey, 
rather than at the general election, when they will be ignored or overshadowed 
by other issues. His demand for a more facile method of constitutional change 
voices an opinion which is rapidly gaining ground in all the States, — "In con- 
clusion it may be asked whether, in the effort to prevent too frequent and ill- 
advised changes in the State constitution, the reactionary pendulum has not 
swung to the opposite extreme, and, instead of progress and growth, we are now 
confronted by constitutional stagnation, if not retrogression." 

1 An admirable description of the methods of amendment may also be found 
in W. F. Dodd: The Amendment of State Constitutions. See also Prof. J. Q. 
Dealey's article on "Tendencies in State Constitutions, " in the Political Science 
Review, February, 1907. 



THE STATE GOVERNMENT 303 

tional tests. Of these Connecticut is a type. Its constitution provides 
that no one shall vote unless he can read any section of the constitu- 
tion or of the laws in the English language and can write his name. 
In Pennsylvania and many of the Southern States there is a small 
property qualification in the shape of a poll tax. This is 50c in Penn- 
sylvania and from $1 to $2 in the South. Most of the Southern States 
located in the black belt have found it necessary to debar the negro 
from voting. This is done by an educational test or by the property 
qualification, notably the requirements that voters must have paid 
all poll taxes for five years, or by a clause which, as in Alabama, 
requires that electors to be registered must be persons of good moral 
character who understand the duties and obligations of citizenship 
under a republican form of government. The constitution of that 
State also authorizes the registering board to require the applicant 
to state under oath the name or names of all his employers for the 
last five years, any willfully false answer being perjury. As many 
of these clauses would debar the whites also, various devices have 
been invented to include the white vote. One of these is the grand- 
father clause. In Louisiana and North Carolina ail men who were 
voters before January 1, 1867, and in Louisiana the sons and grand- 
sons of such men and in North Carolina all lineal descendants of 
such persons, who were or might become voters before 1908, remain 
for life qualified to vote, regardless of the educational or property 
qualifications. In Virginia all adult male persons who do not own 
property and cannot pass the educational test may vote if they have 
served in the army or navy of the United States or of the confederate 
States, or if they are the sons of persons who did so serve. Although 
the 15th Amendment prohibits the States from denying the right 
to vote to anyone, on account of his race or color, it has been possible 
to exclude the great masses of negro voters by these provisions or by 
the peculiar interpretation w r hich the registry boards give to them. 1 

It would be a calamity for the South to fall under the political 
control of a backward uneducated element, either white or negro, 
but it would seem desirable to exclude this element by some fairer 
means than those described. Such devices have resulted from the 
mistaken policy of the 15th Amendment. Its repeal would remove 
from the southern white race the fear of black domination, would 
enable the parties to vote on other than racial issues and would 
soon produce a fairer spirit towards the negro himself and a better 
cooperation between (he races. 

Woman Suffrage. — The State constitutions ami legislatures are 
gradually providing lor the enjoyment o\ the right to vote by women, 
upon equal terms with men. This change has followed a long and 
impressive agitation of the public mind, carried on in a way that 
shows the remarkable influence oi public opinion and the modern 
means oi arousing and molding such opinion. The suffrage has hern 

1 See the article, " Negro Suffrage" by J. C. Rose, t m 
Review, Volume t, page 1 7. 



304 THE NEW AMERICAN GOVERNMENT 

granted to women in so many States without creating any of the 
bad effects feared by its opponents, and with some good results, that 
the more conservative commonwealths are now falling into line. 1 

Registration of Voters. — Among the many methods of making 
up the list of qualified voters in each district, that which has proven 
most satisfactory is the personal registration plan, first adopted in 
California, and used in most of the commonwealths in which there 
are large cities. This involves the personal appearance of the voter 
before an official board of registrars, usually meeting at the polling 
place about 60 or 90 days before the election. The voter makes affi- 
davit as to his identity, age, citizenship, length of residence in the 
State and district, his home address and his place of birth. If natu- 
ralized he must produce his papers; if the law requires a poll tax, 
he must show his receipt. If an educational qualification must be 
satisfied, the registry board applies it. Opposite his name in the 
registry book, the above facts are entered and with them a brief 
description of the voter's personal appearance, and his signature. 
In New York he repeats his signature on election day, for comparison. 
The advantage of this plan over the old method of registry by visiting 
assessors who called at each residence, is that personal registration 
immensely reduces the opportunity for fraud and repeating and 
makes "mistakes" of election assessors impossible. 

State Regulation of Party Machinery. — The regulation of the 
party itself is necessary to secure fairness and make each party organ- 
ization more representative of the rank and file of its members. 
There can be no doubt that, left to itself a party machine tends to 
slump into the hands of those interests and cliques which devote 
the most time, capital and organization to it, and that these by no 
means represent the party voters in any true sense. For this reason, 
when some issue arises in which the people do take an active interest 
they usually find the machinery of both parties in the hands of rings 
which attempt to stifle or block any movement towards progress. 
Accordingly, several of the States have provided that the State 
committee which is the controlling executive body, shall be elected 
by the party voters, one member from each locality. Pennsylvania 
allows one committeeman to each of the fifty senatorial election 
districts, Wisconsin two to each Congressional district. In those 
commonwealths which have not yet abandoned the older conven- 
tion form of nominating candidates, the convention usually chooses 
the committee, but this is of course the favorite method of taking 
control out of the hands of the party members. 

A party is usually defined by the laws as being an organization 

1 Woman suffrage has been adopted by the following thirteen States and 
territories: 

Arizona Illinois Oregon 

California Kansas Utah 

Colorado Montana Washington 

Idaho Nevada Wyoming 

Alaska 



THE STATE GOVERNMENT 305 

of voters which at the last State election cast a certain number of 
votes (New York) or a certain proportion of the total vote (Oregon). 
All details of arrangement of the ballot, the time and place of hold- 
ing the nomination elections, and the expenses of the same are 
fixed by law under the new system, the purpose being to prevent 
members of other parties from interfering, and to minimize op- 
portunities for fraud and mistake. 

Direct Primaries. — Although some of the States still nominate 
their party candidates by conventions, in which all the old devices 
of former times are resorted to in order to manipulate the choice, 
the movement for direct nominations by the party voters has 
now reached national proportions and has almost displaced the 
older system. 1 The direct primary law usually provides that the 
primary nomination shall be held at the same time for all parties, 
and shall be under official State control. Prior to the primary, 
the State or local officials in charge receive lists of candidates, 2 
whose names they print upon the separate ballot of each respec- 
tive party. The vote on these names is then taken in regular 
election booths by the voters, each party having its own ballot. 3 
If the voter is not required to register his party affiliation, but 
may choose the ballot of any party that he wishes, the plan is 
called the "open primary." When he must announce his alle- 
giance and ask for the ballot of his party by name, the plan is called 
the "closed primary." 

Both plans have serious defects in practice; the closed primary 
makes known every voter's party allegiance and defeats the prin- 
ciple of the secret ballot. The open primary allows the leaders of a 
large majority party, especially in the cities, to order a number of 
their henchmen to vote the ballot of the opposition or minority 
and on it to support candidates for nomination who will be friendly 

1 Strenuous efforts have been made to arrange the primary laws so as to 
favor the small governing cliques in each party, by such expedients as the re- 
quirement that the voter must announce his party allegiance when he enters 
the primary, or that new parties may not be formed except under most difficult 
conditions, or that candidates for certain offices, at least, may be nominated 
at conventions, but these devices are unable to stay the widespread general 
tendency to place the party under the control of the mass of its voters and make 
it responsive. 

2 The State laws usually allow the suggestion of such names by petition with 
a number of signatures, or upon simple application and payment of a moderate 
fee. 

3 The first direct primary system, established as a substitute for the conven- 
tion, was adopted in Crawford County, Pennsylvania, in [868. The voters in 
each party, by agreement of the party leaders, determined directly by ballot 
the nominees of that party for the succeeding election. The system worked 
successfully and was later adopted in several other counties of the State.' Its 

practical weaknesses arose from an extensive system of vote buying -u\d from 
the great preponderance of the cities and towns in nomination. The urban 
districts, because of their large subservient vote, could easily outweigh the 
farming sections. Despite these detects the system was in the main satisfactory 

and contained the chief principle upon which the later State laws were based. 

See E. C. Meyer, Nominating Systems, First Edition, pages 11; and ff. 



3 o6 



THE NEW AMERICAN GOVERNMENT 



to the majority's interests — in this t way destroying the minority 
party's existence, save in name. The open primary is safest, on the 
whole, especially when combined with full opportunities for nomina- 
tion by petition. Wisconsin has adopted the open form, Pennsyl- 
vania the closed, and New York has a compromise plan. The pri- 
maries of all parties are usually held on the same day and at the 
same polling place. Expenses are paid by the State. This is a wise 
recognition of the distinctly public nature of the primary. 

As a rule the laws provide for the nomination by a simple plurality. 
That is, the person who receives the highest number of votes becomes 
the party's nominee, even though he has not a majority of the votes 
cast. He may, in fact, be objectionable to the majority of the voters 
at the primary and it is this possibility of a minority determining the 
party's choice which has led some of the western States to provide 
for preferential voting at the primaries. That system enables each 
voter to express his first, second, and sometimes his third choice 
for each nomination. 1 In this way a majority control of the nomina- 
tion is always assured. The direct primary has already been adopted 
either by law or by party rules in thirty-eight States. 2 

The Advantages of the Direct System. — Many theoretical bene- 
fits and defects of the direct nomination plan were prophesied before 
its general adoption. A full list of these may be found in Dr. Meyer's 
Nominating Systems* but the direct method has not worked out pre- 
cisely as either its friends or its enemies claim, (a) It has not 
destroyed the party " organization " or "gang," — but has greatly 
changed the efforts and methods of that body and brought it further 
into the light than ever before. Some organization is necessary to 
sift out the weaker from the stronger candidates, the political leaders 
still find it to their advantage to favor a subservient type of man 
for office and they still enjoy the advantages of system, method, 
permanence and appeal to self-interest and prejudice. Accordingly, 
the direct primary has in a manner changed the methods of organiza- 
tion. Were all our political leaders angels from Heaven, those who 
resorted to organization would win and those who refused to do so 
would not. Undoubtedly, however, the character of the organiza- 

1 This is provided by the Wisconsin Act of 191 1. 

2 The list is as follows: 
Maine 

Massachusetts 
Michigan 
Minnesota 
Missouri 
Montana 
Nebraska 
Nevada 

New Hampshire 
New Jersey- 
New York 
North Dakota 
Ohio 



Alabama 
Arizona 
Arkansas 
California 
Colorado 
Florida 
Georgia 
Idaho 
Illinois 
Iowa 
Kansas 
Kentucky 
Louisiana 
3 Pages 260 and ff . 



Oklahoma 

Oregon 

Pennsylvania 

South Carolina 

South Dakota 

Tennessee 

Texas 

Vermont 

Virginia 

Washington 

Wisconsin 

Wyoming 



THE STATE GOVERNMENT 307 

tion has been immensely improved by forcing the entire process of 
nomination out into the open and by greatly increasing the oppor- 
tunities for new men who have not the official O. K. of the leader. 
In short, the organization has been made more responsible, which was, 
after all, the real purpose of the direct plan, (b) It has not eliminated 
"business" from politics. The strong corporations and their eco- 
nomic interests are forbidden to contribute to campaign expenses, 
but this does not prevent their large shareholders from supporting 
within each party the candidacy of those men who will "do the 
right thing." But the new plan offers a complete ventiLation of the 
claims of the various candidates and allows and encourages the voter 
to register his preference with the valuable knowledge that his vote 
will count as it is cast and that no delegates to a convention, pledged 
to one candidate, can be manipulated to another, (c) The critics 
of the direct primary plan claimed that it would increase vote buying 
and the old-fashioned campaign through the saloons to secure popu- 
lar favor. This has not proven true in practice. There has been a 
great increase in expenses for advertising, for travelling and for 
generally getting acquainted. There has also been an enormous 
growth of speech-making in the cities and at the country cross-roads, 
and many pious pledges have been given by candidates in the pri- 
mary campaign which were slightly florid in character. But it can- 
not be said that either bribery or carousing and intoxication or other 
improper methods of influencing the voter have been resorted to; 
on the contrary, the direct primary has vastly increased the more 
serious methods of influencing public opinion and has focused at- 
tention upon the real substance of public policy in a way which was 
never possible before. All observers agree also that it has immensely 
raised the vote cast at the primary elections. It is more truly repre- 
sentative of party opinion than the old convention system. 

The Ballot. — Two forms of ballot are now struggling for popular 
favor; the older style is known as the "party column," in which all 
the candidates of one party for the various offices are arranged in a 
vertical column under the party's name, usually with a circle at the 
top in which the voter by placing a mark, may at one stroke vote 
for all the candidates of that party, — "a straight ticket." Of course 
the party leaders strain every effort to force the voter to do this, since 
it immeasurably strengthens their control own- the party machine. 
The usual form of party column ballot is given below. 



3 o8 



THE NEW AMERICAN GOVERNMENT 
THE PARTY COLUMN BALLOT 



DEMOCRATIC 
For a straight ticket 
mark X in this 
circle f>^ 



REPUBLICAN 
For a straight ticket 
mark X in this 
circle ^-^ 



PROGRESSIVE 
For a straight ticket 
mark X in this 
circle ^-«^ 



Governor 
John Doe 



Governor 
Richard Roe 



Governor 
Richard Jones 



State Treasurer 
William Tompkins 



State Treasurer 
Henry Wright 



State Treasurer 
John Smith 



Auditor General 
James Williamson 



Auditor General 
Harvey Wiley 



Auditor General 
Thomas Perkins 



State House of Repre- 
sentatives 
William McGuire 



State House of Repre- 
sentatives 
Thomas Dougherty 



State House of Repre- 
sentatives 
Frank Small 



The square at the right of a name is marked by the voter who wishes to 
"split" his ticket. 

Straight voting is praised as a virtue, the voters who obey are 
called "stalwarts"; malediction and political excommunication are 
threatened upon those who split their tickets and at every chance the 
election laws are covertly worded so as to make split voting difficult, — ■ 
but all in vain. The tide has set toward greater independence of 
the voter, the belief has arisen that a party should be a servant, 
not a master, a means rather than an end. The number of those 
who say with a complacent smile on election day that they "voted 
the straight ticket," with the air of having saved the Republic, is 
growing steadily less. 

The Australian Ballot. — The public mind is turning toward a 
new type of ballot — the Australian, which places the names of 
candidates of all parties for a given office in alphabetical order 
giving each candidate's party affiliation after his name, thus: 

Sheriff, 

John Doe, Democratic, 

William Tompkins, Republican, 

Henry Zane, Prohibition. 



THE STATE GOVERNMENT 309 

This makes straight ticket voting impossible and requires the elector 
to make a mark opposite the name of each candidate for whom 
he votes. It is the form used in Australia, 1 and has been in use 
in Massachusetts for many years. The great advantage of this 
arrangement is that it makes it just as easy to make a split ticket 
as a straight one, and thereby gives us the benefit of that very large 
vote by persons who would willingly make a real choice between 
candidates if they were allowed a reasonable opportunity. The 
Australian or Massachusetts ballot is the only form which offers 
this opportunity. It is now proposed to strengthen the ballot 
further by reducing the number of elective officers so that the 
voter may concentrate his attention upon a few important positions 
and make a real choice. 2 

The alphabetical ballot was first adopted in America in 1888 
when Massachusetts and Kentucky abandoned the old vest pocket 
type and established the Australian form. The vest pocket plan 
allowed each voter to write on a ballot or attach to it by stickers 
the names of the persons whom he favored for each office. It 
was a simple matter for the local party worker to furnish these 
stickers to the voters as they entered the polls, and even to attach 
them to the ballot himself. The "making up" of ballots in this 
way was the rule rather than the exception. The ease of manipulat- 
ing the ignorant and subservient vote and the publicity which at- 
tached to voting by the vest pocket plan has caused its abandon- 
ment in all the States. The new form has been adopted by 14 of 
the commonwealths while 27 have what is called the Indiana or 
party column form. The latter is gradually losing ground to the 
Australian system. Some of the States have adopted a rule re- 
quiring a name to appear in only one place on the ballot. Such 
a rule is reasonable if combined with the alphabetical form but 
when applied to the party column ballot it prevents several parties 
from uniting on the same candidate; this is a serious, if not insur- 
mountable obstacle to the reasonable union of small parties, — a 
union which it is greatly to the public interest to facilitate. 

Corrupt Practices Acts. — In order to prevent bribery and other 
gross forms of dishonesty in elections and to discourage the employ- 
ment of large sums of money in influencing the electorate, a whole 
series of election laws and "corrupt practices " acts have been passed 
by all the States. These prohibit the offer or acceptance of money 
or other valuable consideration by a voter, a delegate, a committee- 
man or nomination or election official, to Influence his action. If 
such violation of the law is proven to exist on a scale which would 
influence the result of the election, the courts may order a new 

1 A number of other forms of ballot even including the old party column 

stylo, are sometimes wrongfully called the "Australian" ballot but the only 

form which can properly claim the title is the alphabetical arrangement given 

above. 

8 Sec the Chapter on The Short Ballot. 



310 THE NEW AMERICAN GOVERNMENT 

vote in the district affected or reject all the returns from the dis- 
trict. In England the judiciary makes free use of this power, in- 
stances being on record where a new election has been ordered on 
the ground that the victorious candidate's political manager had 
provided free drinks and other entertainment to the voters; but 
in this country the judges are extremely reluctant to intervene in 
any form of election dispute, fearing that the suspicion of favoring 
one side or another might be incurred, and the courts thereby 
drawn into politics. 1 Other provisions require candidates and 
their political managers or campaign committee treasurers to file 
an official statement under oath, of their nomination and election 
expenditures (New York, Pennsylvania and many other States), 
and prohibit the payment by corporations of any gifts or contribu- 
tions to party funds. This latter is also forbidden by the Federal 
Act of 1907. It was formerly the custom for the largest companies 
to contribute heavily to the treasuries of both parties, a practice 
which supposedly gave them immunity from hostile government 
action. In New York an attempt has been made to fix the uses 
to which election funds can be devoted, by limiting them to travel- 
ling expenses, personal outlays of candidates, payment of political 
workers, meetings, printing, etc. These provisions are easily 
evaded. All the rules against bribery of voters are now commonly 
violated in close city elections by the simple expedient of taking 
voters on the party pay roll as additional "workers" at the polls, 
pinning a badge on them and giving them nothing to do but vote. 
Most of the States have found it difficult also to regulate the ques- 
tion of assistance to voters. The Pennsylvania statute for example, 
provides that "If any voter declares to the judge of election that 
by reason of any disability he desires assistance in the preparation 
ol his ballot, he shall be permitted by the judge of election to select 
a qualified voter of the election district to aid him in the prepara- 
tion of his ballot, such preparation being made in the voting com- 
partment." (Act 1893, Sec. 26, P. L. 432.) Such "assistance" 
is supposed to be required by voters who from physical disability, 
defective eyesight, or illiteracy are unable to mark their ballots. 
But the laws allowing "assistance" are becoming extremely un- 
popular because of their abuse by corrupt political workers. Many 
purchased voters will not "stay put" but will sell out to both 
sides and then vote as they please. In order to see that this slip- 
pery element honestly delivers what it has sold, the party workers 
insist that such voters on coming into the voting booth shall ask 
for "assistance" in marking their ballots, mentioning whom they 
want to aid them. This kindly person who is the party worker, 

1 In all the States a contestant must prove, not that there was fraud at a 
given polling place, but that there was sufficient to influence the result of the 
vote at that place. If in addition he can then show strong reason to believe 
that the fraud was widely attempted in a given section, the courts order an. 
investigation of all the ballot boxes in that section. 



THE STATE GOVERNMENT 3II 

then makes sure of the consummation of the bargain by marking 
the ballot himself in the booth. The word " assistance" should be 
more closely limited to cases of physical incapacity or, better still, 
dropped altogether. 

Greater Honesty in Elections. — Undoubtedly the last decade 
has seen a marked improvement in the purity of election laws and 
their administration and a demand for still stronger action is prev- 
alent in all parts of the country to-day. Reaction is especially 
strong in the large cities where the domination of the leader and 
his petty minions has been most absolute. This improvement has 
not kept pace with the public standard of morality, however, and 
many observers are inclined to be pessimistic because of the greater 
distance still remaining between the public conscience and the 
actual results so far realized. Prof. Beard 1 says: — "Just as in 
the familiar contest in the field of naval construction between high- 
power projectiles and still more powerful defensive armor, so every 
advance in the direction of greater rigor and minuteness in the 
provisions of the election law has been met by a more than cor- 
responding systematization and perfection of the methods of evad- 
ing such provisions." We must remember, however, that the vast 
improvement of recent years is only the first fruit of a new move- 
ment towards the organization and modernization of what were 
formerly called reform elements in politics. These scattered fac- 
tions and influences were mere temporary groups with no common 
center and little capacity for co-operation. They are now being- 
gathered together in permanent clubs and are beginning to see the 
advantages of modern systematic methods of guiding public opinion. 
In every large city to-day there is some organization such as the 
city club of New York or Philadelphia. These clubs hold together 
the advanced and progressive elements in each municipality and 
make a permanent point of departure for municipal movements. 
There are also many municipal leagues of a non-partisan nature, 
whose chief aim is to concentrate public attention upon the records 
and principles of candidates for local office. Foremost among 
these is the Chicago municipal voters league which, without pro- 
posing candidates of its own exerts a strong and often successful 
influence at elections by showing what the candidates have clone 
to deserve public reward or otherwise. Closely related to these 
are the many business associations, city, State and national, al- 
most all of which throw their influence, when possible, toward the 
improvement of government methods. It has become customary in 
most of these commercial bodies to devote at least a part oi the time 
of their meetings to the consideration oi seme public improvement 
question. 2 The very fact that popular opinion is now so far in ad- 
vance of twisting methods oi government is the mosl encouraging 
sign of the times. 'Hie results already achieved have three im- 

1 American Government and Politics, p. 685. 

2 See the sections dealing with Public Opinion. 



312 THE NEW AMERICAN GOVERNMENT 

portant features which promise still greater advantages in the near 
future, — greater simplicity, directness and publicity. Wherever 
these features have been embodied in our election laws under 
conditions of fair trial, a noticeable improvement has resulted. 

REFERENCES 

The Manual or Legislative Handbook of Each State. This usually contains the 
constitution, election laws, the courts and more important officers of adminis- 
tration and other valuable information. 

F. N. Thorpe : Federal and State Constitutions. 

James W. Garner, in American Political Science Review, February, 1907. 
The Amendment of State Constitutions. 

C. L. Jones: Readings on Parties and Elections. 

C. E. Merriam: Nominating Elections. 

E. C. Meyer: Nominating Systems; a second edition in preparation. 

Election law summaries published by the State committee of each party, or 
contained in the State handbook. 



i/: 



QUESTIONS 

Why has not the growth of national authority weakened the State 
governments? How have business and economic changes affected the State 
governments in the last thirty years? 

2. You are present at a discussion of the relative influences exerted upon 
government by unusual personalities and by ordinary scientific progress re- 
spectively. Explain the views which you would advance on either side of the 
discussion. 

3. Would you attribute the recent growth of State powers to Socialistic 
doctrine and agitation? Reasons. 

4. When was the present constitution of your State adopted? Prepare a 
brief outline or table of contents of it showing the main topic of each division 
and article. 

5. Why does the State constitution contain so many provisions of ordinary 
law? 

fo. What are special laws? Local laws? Why are they forbidden? 

7. Show the similarity between the bill of rights in your State constitution 
and that in the national document. 

8. How is your State constitution amended? When was it changed last? 

9. Explain why the constitutions of Illinois and Indiana are so seldom 
amended. 

10. The members of a constitutional convention are considering the article 
dealing with future conventions — should they make this detailed or general in 
character? Reasons. 

11. A convention is about to consider the article on single amendments. 
Give your impressions as to a wise formulation of this article. 

12. Why are the election laws of equal importance with the constitution? 

13. What does the national constitution provide as to the qualifications of 
voters for congressman, senator, and presidential electors? What difference is 
there between the qualifications of these voters and those at State and local 
elections? 

14. Outline the principal qualifications for voters in different sections of the 
country as determined by State laws. 

15. Where does the property qualification occur and what form does it take? 

16. How are the colored people debarred from voting in the South? 

17. How has the Fourteenth Amendment stimulated these methods? 

18. Is the grandfather clause constitutional in your opinion? 

/19. Give your impressions as to the advisability or otherwise of repealing 
the Fourteenth Amendment, with reasons. 



THE STATE GOVERNMENT 313 

20. Explain the extent and causes of the progress of woman suffrage and 
give your own views as to its advisability. 

21. Outline a plan of personal registration of voters. Why is it needed? 

22. Why has the State regulated party machinery and organization? 
t/i$. How is the State committee of each party chosen in your State? 

24. How does your State law define a party? 

25. What is a direct primary and why is it now established by law? 
*«6T Outline the chief provisions of such a law. 

prf. Describe the Crawford County system as first adopted in this country. 

28. What is the difference between the open and closed primary? 

29. Outline briefly the disadvantages of each and give your impressions as 
to the better plan. 

30. How are the expenses of direct primaries paid and give your impressions 
of the wisdom of this plan of payment. 

31. Outline the primary system existing in your State. 

32. Why does party leadership and "organization" still exist although in 
lessxiespotic form perhaps, under the system of direct primaries? 

V^3. What is the difference between the plurality and majority methods of 
nomination? 

34. Explain the preferential voting system and give your impressions as to 
its value. 

35. Prepare an essay on the direct primary after reading the references, and 
secure the opinions of two political workers of opposite parties in. your dis- 
trict, — give your conclusions as to the advantages of the direct system. 

36. Explain the old vest-pocket method of voting. 

37. Contrast this with the modern ballot as used in your State. 

38. Explain the party column form of ballot and contrast it with the Aus- 
tralian form. Which is the better and why? 

39. Give your views of the argument that the ballot law should strengthen 
party, control by making it easier for the party worker to instruct and advise 
voters how they should cast their ballots, and by making it more difficult for 
independent movements to arise and for independent voters to split their ballots. 

40. What are your impressions of the rule requiring a candidate's name to 
appear only in one place on the ballot? 

41. What is a corrupt practices act? Outline the chief provisions of these 
laws. 

42. Why should a corporation not contribute to a political campaign fund? 

43. Why should a voter be allowed to have assistance? 

44. Explain the disadvantage of the "assistance" clause in the election 
laws and suggest a remedy. 



CHAPTER XVII 

THE STATE— Continued 
THE EXECUTIVE, LEGISLATURE AND COURTS 

The Governor. — The State executive is slowly struggling upward 
into the same position of leadership that has already been won by 
the President. For many generations the Governor was a mere 
figurehead, because in Colonial days he had been the " royal 
executive " and, as such, the means of royal oppression and tyranny. 
When the Colonies became States in the Revolution, they imme- 
diately stripped the office of its real authority and left it that 
curious anomaly which it has since remained until the most recent 
years — a post of much honor but little power. In some of the 
States half of the Governor's cabinet are elected rather than ap- 
pointed. Most of the States still elect the State Treasurer and 
State Comptroller or Auditor General, and many of them choose 
even the Banking and Insurance Commissioners and Superintend- 
ent of Schools in the same way. 

The chief executive offices are: 

Governor, 

Lieutenant Governor, 

Secretary of the Commonwealth, 

Attorney General, 

Treasurer, 

Comptroller or Auditor, 

Banking Commissioner, 

Insurance Commissioner, 

Superintendent of Public Instruction, 

Industrial Commission, 

Factory Inspector, 

Highway Commissioner, 

Board of Health, 

Bureau of Charities, 

Public Service Commission, etc. 

So far as these officials are elected they are of course independent 
of the Governor. In fact the strongest influences of tradition and 
popular prejudice have prevented the Governor from becoming the 
controlling force in the commonwealth government and in many 
States he is dependent at every turn upon the leader of his party, 
as we shall see. 

While the legal provisions as to the Governor's election, term of 



THE STATE 315 

office and qualifications differ widely in the various States, there are 
certain general provisions common to all. The Governor is elected 
by popular vote, a simple plurality l being sufficient. In most of 
the commonwealths he is nominated by a direct primary. These 
direct primaries are usually held from two to four months previous 
to the election. The nomination in this way has been taken out of 
the hands of a party convention which formerly controlled it and 
in which delays and manipulation of delegates were notoriously 
frequent. The usual qualifications required of the Governor are 
citizenship, residence within the State for a period of from five to 
seven years, and a required age of thirty to thirty-five years. The 
old feeling of distrust of the executive shows itself in the short 
term of two years which many of the States provide. A majority, 
however, now retain their executives for four years, and this is the 
better course, since no Governor can do half of what is expected of 
him in two years. In fact, most of them have only fairly started 
upon their plans of legislative and administrative progress at the 
end of the second year. In Indiana, Pennsylvania and a few other 
commonwealths the executive may not succeed himself, although 
he may be re-elected after a succeeding Governor has intervened. 
This curious provision completely defeats any effort at consecutive 
work through a term of years on the Governor's part. Most 
Governors begin during the first or second year of their adminis- 
tration to force promised changes in legislation. This brings them 
into immediate conflict with many strongly intrenched interests, 
partisan and otherwise, in the State, a conflict that wages for 
several years. To forbid the Governor to succeed himself is to 
prevent him from organizing his forces in the struggle; from the 
outset the shortness of his tenure is a serious handicap. The 
Governor's term of office should be extended and he should be 
allowed to succeed himself for at least one term. The salary varies 
widely according to the tradition or freedom from tradition in 
each commonwealth. Until recently some of the New England 
Governors were paid only nominal amounts, — in one State as low 
as $1,500. In that section and in the South salaries are still low, 
Vermont paying but $2,500. The highest paid is in Illinois, $1 2,000, 
while the large and wealthy States of New York, Pennsylvania, 
Ohio and New Jersey pay $10,000. 

The most important of the Governor's duties are: 

Appointments, 

Legislative Veto, 

General Executive Towers, 

judicial, 

Military. 

Appointments. — The appointing power has doubled and even 
trebled within the Last twenty years because of the growing work oi 

1 By plurality is meant the highest number of votes cast for any candidate. 
A majority requires more than half of the total votes. 



316 THE NEW AMERICAN GOVERNMENT 

the State and the new offices which have been created to carry on 
this work. Each appointment is made after consultation with the 
ruling political leaders, and all important factions of the party 
and all parts of the State must be represented in the offices. In 
several of the commonwealths a system of appointment by civil 
service rules has been adopted for the subordinate positions, notably 
in Massachusetts, New York, and Wisconsin, where the plan has 
proved successful in reducing the pressure for purely political 
appointments. 1 

All the States require the approval of the Senate for the Gover- 
nor's appointments. This has proven a serious obstacle to his 
control over the State administration. There is no reason why he 
should not be trusted to select the State officials, even the most 
important. The question at bottom is after all a simple one, — do 
we want the Governor to manage the State administration? Or 
differently expressed, do we want that administration to be con- 
trolled by outside forces which escape public observation and 
responsibility? Every check and limit which is placed upon the 
Governor's appointive and executive authority is a means of 
directing power and responsibility from him to these outside forces. 
Every step taken to increase his prerogatives brings out into the 
daylight the real influences at work in State government and 
renders that government more accountable to the voter. Our 
commonwealth administration to-day is one of indirect responsi- 
bility and concealment. It is no coincidence that many advanced 
and vigorous executives protest against the policy of limiting the 
Governor's powers at every point. The Governors of Kansas and 
Colorado have forcibly called attention to this need. 2 

Those who favor the short ballot as a means of making the State 
government responsive to popular will strongly insist upon the 
concentration of the appointing power in the Governor's hands. 3 

1 These are fully described in the Chapter on The Civil Service. 

2 See proceedings of Governors' Conference, 19 13. 

3 The Short Ballot Bulletin of June, 1914, points out that the right kind of 
short ballot is one which fixes administrative responsibility. 

"For instance, the State of Maine now has few names on the ticket. 

"A Governor, a senator and a member of the lower house of legislation are 
the only State officers chosen by the Maine voter. The judiciary, the minor 
State officers and some local officers, elective in other States, are appointed. 
But how? Therein lies the joker. The governor appoints most of them but 
his selections must be confirmed by his council. The latter body, instead of 
being an advisory cabinet composed of men because of their sympathy with his 
policies, is picked for him by the legislature for terms of one year. 

"And so in Maine we find the same lack of directness of control by the people 
as where the ballot contains from 20 to 50 offices. The Governor is no more 
responsible for his administration when he has to consult his council than when 
he has to consult the party boss who exists elsewhere as the unofficial ticket- 
maker. 

"In New York State there are those who believe in the Short Ballot but insist 
that the Governor should submit his appointments to Senate confirmation. 
This, we insist, vitiates the whole principle. Nothing must detract from the 



I 



THE STATE 317 

Legislative Power. — The Governor's personality influences his 
legislative control; if he is a natural leader and has a hold on the 
people he may draw up a strong program of popular measures and, 
concentrating public attention upon these by an open and aggressive 
campaign of speech-making and public interviews, he may bring 
such pressure to bear on the legislature as to force his program 
through. Many successful Governors have done this, among them 
Cleveland, Roosevelt, Hughes, Lafollette, Johnson, Cummins, 
Wilson and others. Instead of submitting to the advice and com- 
mands from "higher up" they have gone direct to the people and 
have won. It is precisely this appeal to the voters that determines 
the strength of the Governor, and brings the office to a plane of real 
influence. 

Finley and Sanderson in their excellent work, The American 
Executive, give the results of an inquiry sent to the Governors of 
several States, as to their influence in securing legislation. Prac- 
tically all the answers showed a substantial increase in the gov- 
ernor's influence, some declaring that nearly the entire program 
mapped out by the Governor was carried into effect by the legisla- 
ture; others stating that only a small number of the Governor's 
recommendations were followed, but these included his most im- 
portant suggestions. Where the Governor and the legislature 
belonged to different parties or factions, the Governor often ap- 
pealed to the people and a number of his recommendations were 
forced through the assembly. 

"While all these ex parte answers indicate with one or two 
exceptions a disposition on the part of legislation to follow executive 
suggestion, it is apparent even from these letters that it is not a 
servile following, and it is plainly stated or intimated by two or 
three that they both follow an imperative public opinion, the 
governor having the first opportunity to respond, and so giving 
unintentionally the impression of leading, whereas he, too, but 
follows. It is apparent, too, that the Chief Executive has found a 
way of compelling legislation, while punctiliously observing the 
legislative limitations of his office; that is, by appealing to public 
opinion to make itself felt in the legislature. There is certainly do 
menace in the power of the Chief Executive of the Commonwealth. 
He has too little. Greater centralization of administrative power 

governor's accountability. The New York 'rimes, in answering President 
Nicholas Murray Butler, sums up the whole proposition by saying: 

"'Quite possibly when the voters may concentrate their attention on a short 
ticket consisting of candidates for Governor and legislator only, they will choose 
better Governor and better Senators. Undoubtedly they will. But experience 
has shown that wherever responsibility is divided carelessness or selfish consider- 
ations creep in to prevent the best executive action. For some years to come, at 
any rate, the Senate will not be very trustworthy as a part of the appointing 

power. . . . No considerable error could be made by fixing the responsibility 
for appointing State officers in the Governor alone. The duty would not often 
be discharged without the seeking of good counsel.' " 



318 THE NEW AMERICAN GOVERNMENT 

and unity of effort are here desirable." The Governor's power to 
force legislation is strengthened by his right to call a special session 
which most of the constitutions provide. Only those subjects 
mentioned in the call may be considered by the legislature. In 
this way Governor Fielder forced the adoption of a reform in the 
methods of selecting jurors in New Jersey and Governor Hughes of 
New York compelled the passage of a law against race-track gam- 
bling. 

The Veto. — The veto is especially important in State government 
because of the usual excess of appropriations over revenues, which 
makes it necessary for the Governor to cut off by veto the surplus 
expenses. The members of the legislature are so harassed by va- 
rious interests among their constituency, demanding appropria- 
tions, that they are afraid to refuse the demands lest they make 
themselves unpopular. They accordingly vote appropriations for 
hospitals, homes, dispensaries, 1 etc., etc., until they have approved 
expenditures enough to swamp the State treasury with a deficit, 
provided the Governor signs the bills. The pressure on the mem- 
bers to continue this practice is almost irresistible and on the 
other side they cannot increase the tax rate to cover these increased 
expenditures without incurring serious unpopularity. What shall 
be done? Too often the answer is, "Put it up to the Governor," 
and the bills are rushed through en masse. The Governor must then 
assume the painful duty of vetoing the excess appropriations. 
Recent legislative sessions in several States have granted appropria- 
tions $20,000,000 in excess of the revenues, all of which had to be 
cut down by the Executive. The Governor may veto an entire 
bill, but in most States he has also the constitutional right to veto 
particular items in an appropriation, or to reduce such items, and 
by using this important power he may cut down the amount for 
each object to a point within the revenues of the State. Much of 
the Governor's time is taken up with hearings on legislative bills. 

Power of Removal. — The right to remove officials is even more 
important than that of appointment as far as the Governor's con- 
trol over his subordinates is concerned. Few of the State con- 
stitutions grant this power in clear and satisfactory terms. Usually 
the Governor is permitted by custom to discharge from office for 
misconduct or neglect, any official whom he has the power to ap- 
point, but in practice the political conditions are such that the 
power is seldom employed. Since appointments have been made 
at the behest of the party leader, it would be insubordination on 
the Governor's part to dismiss from office the men so chosen. When 
an executive of independent views enters the office he finds that his 
power of removal is limited on three sides — (a) some of the most 
important offices, as we have seen, are elected and these are not 
subject to his removal; (b) the appointments require Senatorial 
approval and if he ousts an insubordinate official he cannot appoint 
1 See the Sections on Charities and Correction. 



THE STATE 319 

a successor because the Senate, under the direction of the party 
leader, will refuse its approval; (c) the immense number of local 
officials in the counties, cities and townships are entirely exempt 
from his influence. A few States, such as Illinois and New York, 
have provided that the Governor may remove county sheriffs 
and district attorneys for cause after a public hearing but this is 
the exception rather than the rule. Many State constitutions also 
contain the harmless but useless provision that the Governor may, 
upon address by the State legislature, removed any State official. 
The value of such a clause is about equal to that of impeachment. 
Since the public interest lies in strengthening the Governor's hands 
in any contest which he may enter for the control of the State 
administration, it would seem wise to increase his power of removal 
and to extend it even over many of the elected officers in the 
municipalities with a proviso that such removal must be for cause 
and after a public hearing. If we brush aside the reasoning of the 
ultra-partisan and the extreme reformer, we must concede that it 
is as important that an officer be efficient as it is that he be honest. 
The mere placing in office of a respectable citizen is by no means a 
guarantee that the work entrusted to him will be satisfactorily 
done. On the contrary, we have too often found that the " re- 
spectable" man, in office, is content to allow his office to be used 
for purely partisan purposes and to turn a deaf ear to the urgent 
needs of the people for the enforcement of the law. In such cases 
the chief executive of the State should have the power to reach down 
into the locality and grant relief from intolerable conditions. It 
is no satisfactory answer to local needs to say that the people con- 
stantly have it in their power to better conditions by action at the 
polls. Every official elected in our local governments has sworn 
to obey and enforce the law of his State, and, regardless of party 
organizations or factions, he should be compelled to do so under 
pain of dismissal. The " Governor's Recall" of disobedient and 
neglectful officers would offer a powerful means of establishing new- 
standards of service in all grades of public office. 

General Executive Powers. — As chief executive of the State, the 
Governor is required "to see that the laws are faithfully adminis- 
tered." He receives complaints from citizens, supervises the work 
of the heads of departments, represents the State in its relations 
with the other commonwealths and with the National Government. 
As a rule, however, he is unable to watch the various departments 
as closely as he should, because of the loose and unsystematic 
way in which the offices are grouped, and, unless an official is guilty 

of serious maladministration or dishonesty he is not apt to attract 
the unfavorable notice of the chief. In fact, the executive having 
made his appointments largely for political reasons, is apt to retain 
officials in their places for the same reasons, regardless oi their 

efficiency, as we have seen, unless public attention is called to s 
serious abuse in the office concerned. Removals for inefficiency 



320 THE NEW AMERICAN GOVERNMENT 

are almost unknown in State government, and since the power of 
removal can not be used, the supervision of the administration 
by its nominal chief does not exist. New York, Georgia, Montana 
and a few other States have authorized their Governors to conduct 
a thorough investigation into any State office at any time, an au- 
thority that may at least grow into further control and may be 
used to secure publicity and the aid of public opinion. 

Although a Governor may not compel an elected official to per- 
form his duties, nor force any fixed policy upon the great mass of 
boards and offices which make up the chaos of State administra- 
tion, he does possess one power which is often used effectively 
to enforce the general regulative laws of the State; viz., his control 
over the attorney-generalship. That official is usually in closest 
personal and political association with the Governor and controls 
the prosecuting machinery of the central State government. In 
important conflicts between the State and the organized interests 
opposing regulation, his office can be used to enforce the laws in 
such a way as to command respect for the State administration. 
No corporation to-day enters such a conflict except as a last resort. 
In this way the chief law officer of the State has become a tower of 
strength to the executive. 

A peculiar feature of the Governor's executive duties is his ex- 
officio membership in a number of the chief administrative boards 
of the State; a large share of his time and attention is taken up 
with the work of these bodies. The reason for this custom is that 
the legislature, when regulating a new subject, may wish to avoid 
the additional expense incurred in a new office, and may assign 
the duty to a number of existing officers acting as a committee or 
board. Almost invariably the Governor is made a member of this 
new body. One of our commonwealth executives has calculated 
that he might devote his entire time to the duties of the boards 
of which he was officially a member. Yet most of these bodies 
have important work to perform and the fact that the Governor is 
unable to be present shows that a new arrangement should be made 
or new departments created. Following are some of the boards in 
which the Governor takes an active part when his other duties 
allow: 

Board of Agriculture, 

Trustee of State Library, 

Commissioners of Public Grounds and Buildings, 

Commission of Soldiers' Orphan Schools, 

Armory Board, 

College and University Council, 

State Live Stock Sanitary Board, 

Numerous Boards of Trustees of Colleges and Schools. 

General Problems of State Administration. — In the rapid in- 
crease of State powers the legislatures created large numbers of 
new offices, and the suddenness o f the change made it difficult to 



THE STATE 32 1 

establish any harmonious organization between the newly estab- 
lished authorities, or to bring them into close relations with the 
chief executive. The most pressing, urgent needs were always 
satisfied by the simple creation of an office. The working out of a 
"system" was left to circumstances. We are now beginning to 
feel the need of some unity between the different parts. This 
shows itself in two features of our State administration: 

1. The necessity of a systematic grouping of the offices in de- 
partments; 

2. The need of a strong control by the Governor. 

The lack of a systematic grouping of State offices has prevented 
successful management. In theory the Governor oversees all offi- 
cials but in practice this is impossible. Modern governments are 
much like machinery, there is in each the same tendency to need- 
less friction, the same necessity for accurate adjustment of the 
wearing parts, and even the same inert inclination to "run down" 
unless constantly impelled by that expansive force which in physics 
is called steam, in politics public opinion. But this force, to be 
effective, must be concentrated. It cannot be trivially or indis- 
criminately "squirted" at any or all parts of the governmental 
machine, causing them to work in unison; it must be guided and 
led along direct straight lines. This is the rightful function of the 
chief executive — he should represent the guiding force of public 
opinion, he must personify the people in their political feelings. 
If any part of the complicated structure is out of order, if any 
wheel is slowing down, then and there his influence should make 
itself felt. In order to do this, the administrative offices must 
be grouped and subordinated to each other as is done in any busi- 
ness organization. We are too prone to say that all depends on the 
personality of the chief, that if he is an energetic, capable and honest 
man, his spirit will in some measure dominate the whole adminis- 
trative force, while if he is incapable, no amount of "system" 
will produce results. Such a statement is only half true, for a 
"system" is the means through which the influence of the chief 
makes itself steadily and regularly felt. Can we imagine the Presi- 
dent of a great railway company appointing thousands of officials, 
all of them independent of each other, when by choosing a cabinet 
of six, and subordinating all the others to these, he can secure 
greater efficiency? The business plan of organization has its 
weaknesses, but it also has one indispensable feature oi modern 
management — definite responsibility. We have completely ig- 
nored this principle in our State administration. 

One hundred men may be necessary to govern a small community, 
but much depends upon the way in which this personnel is grouped. 
If the entire hundred are divided into ten separate groups each 
Completely independent oi the other and performing its duties 
regardless oi the others, the administration oi the community 
is doomed to failure. Nor is it otherwise with the State KOvem« 



322 THE NEW AMERICAN GOVERNMENT 

ments. With each decade the government of the commonwealth 
must respond to demands of greater scope and importance. To 
this end the Governor must stand in the same relation to the 
executive force of his State as does the President towards the 
Federal administration. This is possible only where the offices 
are so arranged that he may hold a few heads of departments 
responsible for the action of the entire force. But the Governors 
of some States are now charged with the appointment and direct 
supervision of thirty to fifty important, independent officers and 
boards, besides which some of the most prominent officials are 
elected by the people and are therefore not subordinate to the Gov- 
ernor at all. Under such a plan the Governor cannot control the 
State administration. His dilemma is increased by his abject 
dependence on the party leader, as we shall see. Yet a personnel 
two hundred times as great is directed by the President of the 
United States through the agency of ten responsible heads. There 
is never any doubt as to who is the real chief of the national ad- 
ministration. 

Several of the commonwealths are now devoting serious attention 
to this problem. The Wisconsin board of public affairs has been 
authorized to examine in detail the powers of the various State 
offices to ascertain duplications and conflicts of authority and 
to recommend a regrouping and reorganization of State offices. 
Many proposals have been made looking toward the unifying and 
concentration of reponsibility. The simplest and most effective 
plan would be to abandon the method of electing administrative 
officers and make them all appointive by the Governor; to reorgan- 
ize the State offices under a few department heads as in the National 
Government, making these heads the Governor's cabinet. Such 
departments should be grouped to include every State office now 
in existence. For example: 

State and internal affairs, including public works. 

Justice. 

Treasury, including all State finances and the supervision of 
banks, insurance companies, etc. 

Manufacturing and commerce. 

Labor, including arbitration, factory inspection and other labor 
matters. 

Education, comprising public schools, universities, colleges, etc. 

Public service, including public utility companies. 

Agriculture. 

Public safety, including health, State police, militia. 

Charities and correction. 

Political Position of the Governor. — If the Governor ruled his 
party he would be the strongest influence in the State, for the con- 
trol of the party and of the government are inseparable; no one can 
be the real head of the latter unless he is also the party leader. 
Glancing over the principal States we find that only in the rarest 



THE STATE 323 

exceptions does the Governor occupy this position; almost in- 
variably he is under the thumb of a great party chieftain who is 
"the power behind the throne" and who either prefers to occupy a 
seat in the United States Senate or not to hold office at all. This 
man is the State administration; all appointments are made after 
consultation with him, and he also determines which bills shall 
pass the State legislature. Naturally he prefers to place in the 
Governor's chair a person who will be agreeable to his wishes, who 
will consider the party interests and, especially, help to build 
up the leader's influence within the party. It is clear that a Gov- 
ernor who is young, ambitious and determined to seek power for 
himself is not desired by "the chief" who much prefers a man ad- 
vanced in years, or of satisfied ambitions, and amiable qualities — ■ 
in short, a man of the " honored citizen" type. Such was for many 
years the political position and influence of the State Executive— 
a nominal authority controlled by a "king maker," who was the 
real head of the State. 

The Struggle Between the Governor and the Party Leader. — Into 
this peculiar political situation a new factor has entered in the 
shape of the demand for greater State activity. The first effect was 
apparently to strengthen the party leader; all classes of the people 
desiring legislation must first secure his consent and aid. But little 
by little the desired laws are being enacted and it is now seen that 
their efficacy depends on the executive. The Governor springs into 
greater prominence after every legislative attempt at regulation; 
with the adoption of factory, health, pure food, corporation laws, 
and a host of other measures his nominal power increases, until a 
point is reached where he can no longer withstand the temptation 
to assert some slight degree of independence and feel himself in- 
deed, as in name, the chief executive. If he is a strong man, or a 
consummate politician, or if the conditions of the moment prove 
especially favorable, he subordinates the State executive offices, one 
after the other, to his own control, and even reaches out towards 
the legislature to form a mutual understanding or alliance with the 
party leaders; in short, to become the real head of his party. In all 
this long struggle he is opposed by the forces of the old party system 
and supported by the strength of popular demands for government 
efficiency. These demands arc growing stronger but they are still 
unsteady and spasmodic; the struggle results now in favor oi the 
executive, now in favor of the old leaders. In spite of temporary 
set-backs, the conflict is gradually coming out into the open, and 
the real power tends to pass slowly into the hands oi the Governor. 
This is the significance of the constant turmoil and political unrest 
in our commonwealth administration; we are evolving a responsible 
form of State government. 

Military. -The Governor is Commander in Chief oi the State 
militia and appoints the commanding officers, the Adjutant 
General and a staff oi aides, whose duties as a rule are not onerous. 



324 THE NEW AMERICAN GOVERNMENT 

He may order out any portion of the State militia or national 
guard which is required to maintain order in any district. The 
request for troops is usually made by the Sheriff of the county, 
although the Governor may act without such a request. Some of 
the commonwealths have also established a force of State police to 
avoid delays, expense and political antagonisms incident to calling 
out the militia; the officers of the police are in such cases chosen by 
the Governor and the force is under his orders. 

A State Police. — Pennsylvania, by Act of May 2, 1905, has pro- 
vided a State constabulary for this purpose. At the head is a 
superintendent of State police appointed for four years. His office 
is at the capitol and he is assisted by a deputy and a small office 
force. The superintendent appoints the members of the four com- 
panies or platoons, each with a captain, lieutenant, five sergeants 
and fifty men. Applicants are required to pass a physical and 
mental examination based on the rules of the police force of large 
cities. All the members are mounted. The force is distributed 
through the State in local headquarters, usually in the mining 
districts. Its members are given the usual authority of policemen 
to make arrests without warrants for violation of law which they 
witness and to serve and execute warrants issued by the proper 
authorities. They are also authorized to act as forest, fire and game 
wardens and are directed to co-operate with the local authorities in 
detecting crime, apprehending criminals and preserving order. 
The expenses are born by the State. 

The results of this plan have been such as to commend it strongly 
to other commonwealths. The State police inspire respect, they are 
non-political, and their efficiency is far greater than either the 
militia or the local police forces. 

The Governor may in most States suspend the writ of habeas 
corpus in times of disorder. By doing so he enables the militia to 
protect life and property and to avoid the many grounds on which 
judicial interference with military action may be invoked. Martial 
law, however, is only proclaimed for those sections immediately 
affected by hostilities and only so long as the hostilities exist. The 
State executive is loth to make use of this power because of the 
great unpopularity which it entails. For the same reason most 
of the sheriffs are unwilling to call for State troops, preferring to 
cope with riots and disorders by the aid of local police forces and 
posses. 

Judicial. — The Governor possesses the power to pardon for of- 
fences against the State laws, in some States upon the recommenda- 
tion of a board of pardons, which board is composed of heads of 
departments such as the Attorney General, Secretary, etc. Clem- 
ency extends only to offences against the State laws. The Governor 
also grants extradition of fugitive criminals and requests extradi- 
tion from other State executives. Though the Federal Constitu- 
tion, in Article IV, Section 2, Clause 2, requires the delivery of such 



THE STATE 325 

criminals by the authorities of the State to which they have fled, to 
the Governor of the State where the crime was committed, there is 
no way fixed by the Constitution to compel such delivery, conse- 
quently the extradition cannot be forced but is entirely a matter 
of courtesy between the two executives. 1 

In Kentucky v. Dennison, 24 Howard, 66; i860, the above cited 
clause of the Constitution came to the Supreme Court for inter- 
pretation. A resident of Kentucky had assisted a slave to escape 
and had himself fled to Ohio. Such an act was a crime under the 
laws of Kentucky, and the Governor of that State accordingly 
demanded of Governor Dennison of Ohio that the fugitive be 
delivered up to the Kentucky authorities. The demand being 
refused, Kentucky brought suit against Dennison, as Governor of 
Ohio, and required him to deliver up the fugitive according to the 
Federal Constitution. In order to hasten the execution of Section 2 
of Article 4, Congress had passed an Act in 1793 declaring "It shall 
be the duty of the executive authority of the State or Territory to 
which such person shall have fled, to cause him or her to be arrested 
and secured, and notice of the arrest to be given to the executive 
authority making such demands, or to the agent of such authority 
appointed to receive the fugitive to be delivered to such agent 
when he shall appear." These words in the Act, "it shall be the 
duty," the Supreme Court said in ordinary legislation, imply the 
assertion of the power to command and to coerce obedience. But 
looking to the subject-matter of this law, and the relations which 
the United States and the several States bear to each other, the 
court is of the opinion, the words 'It shall be the duty' were not 
used as mandatory and compulsory, but as declaratory of the moral 
duty which this compact created, when Congress had provided the 
mode of carrying it into execution. The Act does not provide any 
means to compel the execution of this duty, nor inflict any punish- 
ment for neglect or refusal on the part of the Executive of the State; 
nor is there any clause or provision in the Constitution which arms 
the government of the United States with this power. Indeed, 
such a power would place every State under the control and domin- 
ion of the General Government, even in the administration oi its 
internal concerns and reserved rights. And we think it clear, that 
the Federal Government, under the Constitution, has no power to 
impose on a State officer, as such, any duty whatever, ami compel 
him to perform it; for if it possessed this power it might overload 
the officer with duties which would till up all his time, and disable 
him from performing his obligations to the State, and might impose 
upon him duties of a character incompatible with the rank and 
dignity to which he was elevated by the State. 

X "A person charged in any Sun- with treason, felony, or other crime, who 
shall flee from justice, and be found in another State, shall on demand of the 
executive authority of the State from which ho Bed, be delivered up. to ho ro- 
moved to the State having jurisdiction of the crime*" 



326 THE NEW AMERICAN GOVERNMENT 

"It is true that Congress may authorize a particular State officer 
to perform a particular duty; but if he declines to do so, it does not 
follow that he may be coerced or punished for his refusal. And we 
are far from supposing, that in using the word 'duty' the statesmen 
who framed and passed the law, or the President who approved and 
signed it, intended to exercise a coercive power over State officers 
not warranted by the Constitution." 

This is a plain statement of the fact that there is no means to 
compel a State authority to grant extradition. The decision has 
been strictly followed since i860, and in all too numerous instances 
the State executives have used their discretion in granting extradi- 
tion even when such serious crimes as murder were involved. This 
practice points to a serious defect in our Constitutional law. There 
is no longer any reason why a criminal or a person accused of crime 
should be free from prosecution because of the unwillingness of an 
executive officer to deliver him to the proper authorities for trial. 
An enlargement of the Federal jurisdiction to cover such cases 
would inspire greater respect for the law. 

The Legislature. — Probably no body of men in America exerts 
legal powers of such vital importance to the business community as 
those wielded by the State legislature. Our form of government 
makes the State the great reservoir of authority; the legislature 
therefore possesses practically every power which has not been 
forbidden in the State or National Constitution. Originally the 
State legislatures were looked upon with great favor and confidence 
by the people because they were the legitimate successors of those 
colonial assemblies which had so valiantly and faithfully protected 
the rights of the colonists. But the turnpike, canal and railroad 
companies which were floated in the first half of the 19th century 
persuaded many of the legislatures to guarantee dividends on the 
company stock. Other similar ventures and mistakes soon de- 
stroyed the popular confidence, and brought a strong reaction of 
distrust and suspicion against the legislature, which unfortunately 
continues with cause, to the present day. The real difficulty lies 
in the ease with which secret intrigues and deals may be con- 
summated in the law-making bodies of the State, because of the 
large number of members and the methods of transacting and 
concealing the transaction of legislative business. In the be- 
wildering mass of bills and resolutions and from the way in which 
they are shuffled like cards in a pack, it is impossible for the public 
to distinguish the good from the bad and unless a measure is con- 
spicuously good or bad there is small chance of its attracting atten- 
tion. The occupations, pursuits, and even the education and 
general training of the members are neither above nor below that 
of the people. This single fact, which has been pointed out by 
Professor Reinsch, in his excellent work on the American Legisla- 
tures, explodes two political theories, first, the belief of the fathers 
of the government that the legislative bodies of the commonwealths 



THE STATE 327 

would be composed of men far above the average in wisdom, 
judgment, discretion and qualities of leadership; and second, the 
modern critical thought that because of the inferior type of laws 
which are turned out by these bodies, they must be composed of the 
lower elements of the people. Neither of these assumptions is 
correct. In truth, as we shall see later, the vital essential need is for 
greater responsibility, and it is upon this principle that we must 
build, in order to strengthen our legislative bodies. 

Houses of the Legislature. — The upper House or Senate usually 
consists of about fifty members while the lower or House of Repre- 
sentatives has from one hundred to two hundred members. 1 The 
qualifications for office and for voters are usually the same in both 
and even the term of office is sometimes identical. 2 The members 
are paid in most of the States, $1,500 being the salary in New York 
and Pennsylvania. The regular sessions as a rule are held every 
two years and there is often a limit placed by the State constitution 
upon the length of the session. The purpose of this limit is to pre- 
vent the legislature from doing any more harm than is necessary but 
it has acted in the opposite direction in countless instances. Little 
legislation is enacted at the outset of any session because the bills 
have not yet been considered in committee nor have they been 
molded into form to secure legislative approval. The first half of 
the session usually goes by without any important legislation what- 
soever. This means that if there is a sixty-day limit set by the Con- 
stitution, all action is taken in the last thirty days, so that in this 
brief period an immense mass of private and public bills are tech- 
nically "considered" but really are rushed through both Houses, 
oftentimes under the suspension of the rules and without any knowl- 
edge by the members as to the real purpose and effect of the measures 
which they have passed. Like so many other constitutional limita- 
tions on the legislature the sixty or ninety-day clause has done more 
harm than good. 

Procedure. — The procedure is modelled on that of Congress, but 
the control of the Speaker, floor leaders, and caucus over all bills 
and over the members themselves, is far more tyrannical than in 
Congress. This control is corruptly and flagrantly abused, because 
of the lack of public attention and understanding. In the obscurity 
of State procedure the manipulator finds his protection. The State 
party "organization" is even more intolerant of opposition than in 

1 Here is the weak spot in the legislatures. They are too largo to be respon- 
sible. Delaware has the smallest Senate 15 members; Minnesota the largest 
<),-;. New Hampshire Is able to get along with 24 Senators but has .jo. 1 members 
in tlu" lower llonse! New York, Pennsylvania and Illinois have 50 or 51 in the 
Senate and 150 (N. Y.) to 207 (Pa.) in the llonse. There is no need either t'or 
the two Mouses or for a large number of members in any State. 

~ In many of the Slates it is customary to have the Senate term olonhle that 
of the llonse. In New York where there are annual sessions the llonse is elected 
for one year, the Senate for two; in most ^i the other eommonwealths the terms 

are two and four years respectively . 



328 THE NEW AMERICAN GOVERNMENT 

the national body; it ignores the rules, or changes or violates them at 
will, and its officers and committeemen in control of the legislature use 
their powers directly and openly in favor of the leaders whom they 
represent. Measures which lack a majority vote are declared 
" passed," words and whole clauses are added to or dropped from 
bills, after they have been passed, by clerical " mistakes." The 
courts take the ground that such changes are validated by the signa- 
tures of the presiding officers attesting the passage of the bills. Com- 
mittee meetings are called suddenly or when the opposition are not 
present, bills are smothered in committee or "lost" and the whole 
gamut of trickery and chicanery is run in the attempt to block and 
thwart popular measures opposed by the "organization" and to force 
through laws in behalf of some private interest. The members of the 
legislature may fairly represent the average honesty and intelligence 
of the people, but without the stimulus of individual responsibility 
and public attention we cannot expect them to enact laws of a high 
standard nor to withstand the pressure of powerful special interests. 
Restrictions on Legislative Powers. — The recklessness of party 
control of the legislature has led all the States to impose an exten- 
sive series of limits and restrictions on legislative powers and pro- 
cedure: 

(a) The strict prohibition of special legislation where a general 
Act will cover the subject, and a detailed setting forth of the kinds 
of special and local laws which may be passed. 1 

(b) The enactment in the Constitution itself of much ordinary 
legislation on important subjects, such as corporations, local option, 
public service utilities, etc. 

(c) Every bill must relate to one subject only, which must be 
clearly expressed in the title of the bill. The purpose of this pro- 
vision is to block the practice formerly prevalent of attaching snake 
clauses and riders to meritorious provisions with which they were 
in no way connected. The friends of the meritorious measure were 
then obliged to defeat their own bill or to accept the obnoxious 
amendments dealing with other subjects. 

(d) A majority of the members elected to each House, not a simple 
majority of those present, must vote in favor of a bill to insure its 
passage. 

(e) On finance bills involving appropriations or taxation, two- 
thirds of the members elected must approve. 

(f) On the final reading of a measure the "ayes" and "noes" 
must be entered in the journal. 

(g) In all except six of the States the legislature is allowed to 
meet only once in two years except at the call of the Governor. 

Yet these severe constitutional restrictions have not prevented 
the legislature from sacrificing public welfare to special interest 

1 Prof. Reinsch mentions the interesting fact that in California and Ohio the 
constitutions specify over thirty subjects on which special laws may not be en- 
acted. American Legislatures, p. 150. 



THE STATE 329 

when occasion demanded nor have they served to re-establish that 
body in the confidence of the people. Popular distrust continues 
and has shown itself in the movement towards direct legislation 
and towards a complete reorganization of the legislature itself. We 
shall consider these movements in later chapters. 

In the Governor's conference of 19 13 the Governor of Arizona 
pointed out some of the ways in which legislative inefficiency to-day 
blocks the carrying out of the popular will and enables a small group 
of well-organized interests to divert attention towards irrelevant 
bills. He also showed the paralyzing effect which this has upon the 
executive. 1 Meanwhile strong efforts have been made to improve 
the quality of legislation by placing at the disposal of the legislator 
more complete information both as to subject-matter and the form of 
laws. 

Legislative Reference Department. — One of our prominent na- 
tional traits is that we feel competent to give an off-hand opinion 
on any subject connected with government, no matter how technical 
or far removed from our sphere of knowledge the question may be. 
This quality has caused us much discomfort in State law-making 
and has deprived our governments of the expert services which all 
private businesses enjoy. No private company would dream of 

1 "One of the strongest hopes of a Governor when he assumes office is that 
he will have the good fortune to work in harmony with the legislature. His mind 
is open to welcome every opportunity for team work, and at the same time the 
purpose is strong within him to carry out whatever reforms or plans the people 
may have ordered at the polls. If the legislature proves to be inefficient under 
the test, there is trouble and confusion, which do not exactly reflect credit upon 
representative government. Because we are Governors and are held directly 
responsible to the people, this break or defect in the machinery is brought closely 
home to us; for no Governor can be unmindful of a situation which often places 
him in a false light before the people and seems to hold him to account for things 
over which he really has no control. If the inefficiency of legislatures could be 
popularly recognized for exactly what it is — if it did not tend to draw an entire 
State administration into disfavor— the chief executives would no doubt feel 
less concerned over possible damage to the cause of good government and more 
hopeful of the speedy and effective application of the remedy. But, unfor- 
tunately, this is not the situation. An inefficient legislature is the tarred stick 
of State government, doing more or less damage to all who come in contact 
with it in an official way. 

"As a rule the longer a legislature is in session, or the membership is subject 
to call in special session, with long periods intervening, the less efficient it be- 
comes from the standpoint of the public service. The explanation is not diffi- 
cult. The people, having elected the legislature and defined its duties, are likely 
to forget, or take it for granted that orders once given will stand as a guide tor 
legislative action in any direction. Hut the interests never forget or take any- 
thing for granted. They are always at work, stirring up strife, creating divisions 
among the majority, and holding out promise of a political reward to factions. 
This increasing labor, both during a session and between sessions, the Steady 
attack upon officers who remain true to their pledges, the creation oi false issues 
as a means of attack upon real, but hidden, issues, serve to make the legislature 
dull to the pressure of popular influence or power. The inefficient legislature 
takes it for granted that the people have forgotten, or no longer care, and that 
political reward can come only through these interests hovering aroum'. 

legislative elbow." 



330 THE NEW AMERICAN GOVERNMENT 

entrusting its funds or its operations to a department head unless 
he were a highly trained, technically proficient expert who had 
by education or experience qualified himself thoroughly for his 
work. But the State constantly entrusts its duties to the bungling 
ignoramus whose sole qualification is that he means well or that he 
worked for the ticket. As time passes we are growing out of this 
condition, but all of the State governments are still seriously weak- 
ened by it, and nowhere does it show more plainly and with greater 
disadvantages than in the partisan legislator. The suspicion is 
beginning to dawn that we are not all born legislators. A large 
majority of those chosen to the law-making bodies are unfamiliar 
with the simplest and most important principles of law making. 
They are flattered into the belief that good intentions are sufficient 
to make good laws. What is therefore their surprise when they 
find that a measure of undoubted merit which they have introduced 
and passed, may be unconstitutional for not one but several reasons, 
and that even if upheld by the courts it would not achieve the end 
that they had in mind, but would perhaps defeat their very pur- 
pose ! Yet this is a common discovery by both professional politi- 
cian and reformer. It is only another instance of that impressive 
fact that in legislation as in science and in business, we have reached 
the era of " instruments of precision." We need the benefit of every 
technical aid that we can secure. 

No legislature should try to be its own lawyer. "He who pleads 
his own case has a fool for a client," is an ancient English saying, 
that aptly fits our law making. We need the service of the legis- 
lative expert in drafting measures. Upon this thought as a basis, 
the legislature of Wisconsin established a Legislative Reference 
Department in iqoi. The State University furnished an expert, 
Dr. Charles McCarthy, who has built up in his Department a 
complete collection of information and material useful for per- 
fecting the form of legislation, which are all at the service of the 
members without charge. The Department observes the following 
rules: — 

(a) Bills are drafted only on the specific written request of a 
member of the legislature over his signature. 

(b) No suggestions as to the substance of bills are made by the 
department or its draftsmen — the department's work is only 
clerical and technical. 

(c) The department itself is not responsible for the constitution- 
ality nor legality of any measure, although its work necessarily 
obviates most of the evils of illegality that beset the average bill. 
The department is non-political and non-partisan; it places its 
trained experts at the disposal of all factions and members in the 
legislature. 

Dr. McCarthy has found from experience that legislatures have 
not the time to read elaborate text books nor scientific works in 
detail, — they must have practical aids in their legislative work, 



THE STATE 33 1 

short cuts, summaries, references, files, card indices, etc. Accord- 
ingly the department prepares from a list of bills which were intro- 
duced in the previous legislature, a new list of probable topics 
for the next session, and on these topics it obtains collections of the 
laws of other States, of foreign countries, of the National Govern- 
ment, court decisions as to their validity, newspaper clippings, 
magazine articles, reference books, government reports, and a 
list of bills on the same subject previously introduced, a record of 
governors' vetoes, governors' messages, platforms of political 
parties, etc. The department is not only a ready-reference library, 
but also an ideal laboratory in which to prepare new measures. 
The State laws are no longer crude, bungling measures, based on 
honest purpose or good intention, but are better prepared tech- 
nically to achieve the aims of their framers. The technique of 
bill drafting has been conquered and placed at the disposal of all 
who will avail themselves. So successful has the plan proven that 
the other States are rapidly following Wisconsin's lead. A step 
further has been taken by the establishment of a privately supported 
legislative reference bureau in New York City, which has recently 
affiliated with Columbia University. This bureau lays emphasis 
not only upon the technique of bill drafting, but also upon the 
most modern principles and aims of legislation, so that measures 
prepared with its aid enjoy a double advantage. Such a bureau 
in the nature of things cannot be managed by any State but must 
be unofficial in its activity. If adequately supported and backed 
by financial resources commensurate with its importance and public 
services, such an agency would transform our State legislation 
both as to technical quality and effectiveness of policy, within a 
decade. Dr. McCarthy points out that we need in our universi- 
ties and especially our law schools, a further aid for the State 
government in the form of some co-operative system, by which the 
State official as well as the law student may be familiarized with 
(a) the laws upon a given subject, (b) the Court decisions, and 
(c) the administrative results of the execution of the law. In- 
telligent law making means knowing not only the statute passed 
by a legislature, but also the way in which this statute has been 
interpreted by the courts and its exact meaning defined, and 
finally the practical effects which the administration of the law by 
the executive officials, has shown. A survey of any one or even any 
two of these three does not give such a knowledge of law as is re- 
quired by the law maker or the lawyer. We need a thorough 
knowledge of all three sides of this problem, co-ordinated by 
methods which only our universities are fitted to provide. The 
law school, the eeonomie and political science departments of the 

universities and the State legislative reference bureau, must co- 
operate with the expert executive officers to accumulate this knowl- 
edge and make it available. 
Wisconsin has also attempted to improve the technical quality 



332 THE NEW AMERICAN GOVERNMENT 

of her legislation by creating a Revision Committee with an ex- 
pert force appointed under civil service rules to search all bills for 
technical errors. Measures are checked at every stage of their 
passage from the legislature by the clerks of this Committee. In 
this way a number of mistakes which occur in the printing and 
preparation of measures are avoided with great advantage to 
the quality of the legislative product. The State has also provided 
a statute reviser who issues an annual volume revising the statutes 
and bringing them up-to-date. 

The Lobby. — All the legislatures are beset by agents of organized 
interests working either to accomplish or prevent the passage of 
bills affecting their clients. This has become a serious problem 
and at all times a grave menace to the public welfare. The legis- 
lature is in position to grant such favors, privileges and advantages, 
to a few, under the ostensible cover of beneficent legislation, that 
its action is of vital interest to every man in the community. 
Yet it is all too true that the bodies are forced to act in response 
to the demands not of the community, but of the most compactly 
organized elements in the community. The secret of influence 
upon the legislature is organization. Those elements of the people 
who are unorganized count for little or nothing. The lobbyist 
is the agent of an organization. His work is not done in the open 
but by concealed intrigue. He "sees" leaders; he confers with 
them, and makes friends with committeemen, he is a steady, in- 
sistent and secret force prepared to take advantage of all those 
factional eddies and whirls of party organization, which con- 
stantly recur in State politics. Some of the States, again led by 
Wisconsin, have attempted to cope with this problem by requiring 
registration of all lobbyists with the names of the companies that 
they represent. The register is open to public inspection. The law 
provides that their work for their clients must be done in the 
open, that is, in public committee hearings. It is the testimony 
of those on the ground that this requirement has practically ex- 
terminated the grosser forms of corrupt and flagrant solicitation 
and influencing of members that was formerly the order of the day. 

Commission Government for the States. — The belief that the 
State legislatures are not properly organized to carry out the vast 
burden of new duties and services which they are now attempting 
to perform, has grown so strong that serious attention is now 
devoted to their reorganization. All the plans proposed contem- 
plate a material reduction in the number of members in the legis- 
lature, the most practical suggestions being those made by Governor 
George H. Hodges of Kansas, and the Citizens' Committee of 
Oregon. The main points in Governor Hodges' plan are given in 
a special message of March 10, 19 13, from which the following 
quotations are chosen: — 

"In common with a large and growing number of thoughtful 
people I am persuaded that the instrumentalities for legislation 



THE STATE 333 

provided for in our state constitution have become antiquated 
and inefficient. Our system is fashioned after the English parlia- 
ment, with its two houses based upon the distinction between the 
nobility and the common people, each House representing the 
diverse interests of these classes. No such reason exists in this 
State for a dual legislative system, and even in England at the 
present time the dual system has been practically abandoned and 
the upper House shorn of its importance, and I believe that we 
should now concern ourselves in devising a system for legislating 
that will give us more efficiency and quicker response to the de- 
mands of our economic and social conditions and to the will of the 
people. I have been led to this conclusion by an experience of 
eight years as a member of the Senate of this State and my con- 
victions on this subject are by no means of recent date. 

"You senators and representatives cannot but have observed 
the defects of our present system. In a short session of 50 days 
you are required to study and pass upon hundreds of measures, 
and the hurry with which this must be done must of necessity 
result in a number of more or less crude and ill-digested laws, which 
often puzzle learned jurists to interpret with anything like satisfac- 
tion to themselves or to the public. Hundreds of measures also, 
embodying important legislation, die on the calendar every two 
years. After a brief session, the Legislature adjourns, and the 
business of one co-ordinate branch of the State government is ab- 
solutely abandoned for a whole biennium, unless the Legislature is 
convoked in an expensive extraordinary session by the governor. 
It is as if the head of an important department of some big business 
should give only fifty days every two years to its management. 

"I am aware of the veneration with which ancient institutions 
are regarded in some quarters, but I see no reason why we should 
cling to these institutions in carrying on the all-important affairs 
of the State, when in almost every other activity of life we are discard- 
ing old traditions and antiquated methods for newer and progressive 
ideas and more efficient and economic methods. The Legislature 
has itself discarded the antiquated and inefficient methods of manag- 
ing the business of our State institutions and has concentrated the 
responsibility in the hands of a few instead of many boards — in a 
word, has applied to them the principle of government by commis- 
sion. We have recognized in this State also that the old methods oi 
city government are expensive, inefficient and unsatisfactory, and 
everywhere the commission plan ol city government is being adopted, 
and in almost every ease is yielding high-class results. 

"For myself, I can see no good reason why this new idea o\ govern- 
ment by commission should not he adopted for the transaction of 
the business of the State. Two years ago I suggested a single Legis- 
lative assembly of thirty members from thirty legislative districts. 
I am now inclined to believe that this Dumber is too large and that 
a legislative assembly of one, or at most two, from each Congressional 



334 THE NEW AMERICAN GOVERNMENT 

district would be amply large. My judgment is that the governor 
should be ex officio a member and presiding officer of this assembly, 
and that it should be permitted to meet in such frequent and regular 
or adjourned sessions as the exigencies of the public business demand; 
that their terms of office be for four or six years, and that they be 
paid salaries sufficient to justify them in devoting their entire time 
to the public business. Such a legislative assembly would not, I 
believe, be more expensive than our present system. It would cen- 
tralize responsibility and accountability, and under the check of 
the recall would be quickly responsive to the wishes of the people. 

"Our present system has been in vogue since Kansas became a 
State, more than fifty years ago, and in that time we have seen the 
most remarkable changes in sociological and economic conditions 
take place. No private business now uses the methods of fifty years 
ago. In every activity of modern life new and progressive methods 
have been adopted. By progressive I do not mean any visionary 
scheme of government, but the exercise of that sane, sober and wise 
judgment which is always ready to throw away antiquated machinery 
and methods and adopt the latest, most efficient, most beneficent and 
most economical instrumentalities for accomplishing the greatest 
good, whether it be in public or in private affairs. 

"Is there any good reason why political institutions should not 
change with the changing demands of modern social and economic 
conditions? I believe not. The leaven of this new idea of modern 
business methods for modern public business has taken root in the 
public mind. The people are everywhere talking it over, and I am 
one of those who believe that the people can be trusted to reach cor- 
rect conclusions about their own public business when they are given 
adequate opportunity to study and discuss any subject. 

" I am not asking at this time that any legislative action be taken 
on this subject, but am calling your attention to this subject now 
that you may carry back to your people the idea herein expressed 
and talk it over with them for the next two years, to the end that 
when you come back to these halls at that time you may know and 
be of a mind to execute the will of the people of this State on this 
subject." 

The Oregon Plan. — The most advanced and in many respects, 
the most practical of the proposals made for improvement of the 
State legislature is that suggested by the "People's Power League" 
of Oregon, the main features of which are: 

First, to abolish the direct primary and place in its stead a sys- 
tem of preferential voting for the governor; this would do away 
with the need of a primary and allow every voter to express his first, 
second and third choices on his ballot; 

Second, to establish a State budget in which the governor can 
fix a maximum for each item; 

Third, to elect the members of the legislature by a system of pro- 
portional representation; 



THE STATE 335 

Fourth, to reduce the number of members of the legislature and 
establish a single house. 

Fifth, to make all administrative officers appointive by the gov- 
ernor. 

Sixth, to give the governor and members of his cabinet a seat and 
a vote in the legislature. 

Seventh, to retain the popular initiative and referendum and 
establish a recall of all executive and legislative officials and repre- 
sentatives both appointive and elective. The Oregon plan is being 
widely discussed in many circles of people and seems to offer the most 
promising and safest model on which to form our State governments 
in the future because it retains the substance of our representative 
institutions while also concentrating power and responsibility to a 
reasonable extent and, what is most important, simplifying the whole 
organization of the State. 

State Courts. — The usual organization of the State judiciary 
commencing at the bottom is: 

The magistrate or justice of the peace, 

In the cities, municipal courts, 

County courts, both civil and criminal jurisdiction, 

A Superior Court, — in the larger States, 

A Supreme Court or Court of Appeals. 

In most States the judges hold office for ten year periods in the 
lower courts, and for longer terms in the higher. The Supreme Court 
tenures vary from two years in Vermont to 21 years in Pennsylvania. 
No general agreement has been reached by the States in their cus- 
toms of choosing the judges. The most usual methods are election, 
or appointment by the governor, 1 and of these the choice by appoint- 
ment seems more desirable, — first, because of its simplicity, enabling 
the people to divest the election of confusing issues and personalities 
and concentrate under the short ballot principle on the fewest number 
of offices. Second, because the method of election is in reality an 
appointment by the political leader of the majority part)- in the 
State. A majority nomination means election, and no one can se- 
cure this nomination without the 0. K. of the leader. For these 
reasons it seems wise to fix more definitely the responsibility for the 
choice by giving it to a public official, the Governor, rather than to 
a less visible and less responsible influence. This plan has proven 
successful in New Jersey and other Stales. In most oi the States, 
the nomination o( an elective judge in the higher courts is made 
under the control of the political elements which run the other de- 
partments of the State 1 government. Owing to these and other 
causc>s it has not been possible for the judiciary to remain free from 
political influences. Such influence shows itself even in the appoint- 
ment of court officers. A judge cannot he removed from office during 

l The method practiced in .1 few oi the States, of election by the legislature 
is least desirable of all for the reasons which are obvious from what has aL 
been said of the legislative procedure. 



336 THE NEW AMERICAN GOVERNMENT 

his term except by impeachment or in the inferior courts by the 
Governor upon a request from the State legislature. Such a removal 
is almost unknown in recent times. 

In the last twenty years many of the States have created special 
courts for peculiar classes of litigation. The large cities have estab- 
lished municipal courts, the purpose of which is to hear small cases, 
both civil and criminal. The ordinary county courts are so over- 
burdened that the small debtor can usually escape his obligations 
by the simple means of delay and the attendant expense to the plain- 
tiff. /By relegating these small claims to a special court with simple 
procedure, the plaintiff secures more adequate justice at less expense. 
A similar change has taken place in criminal suits. Formerly it 
was the custom to hear all criminal cases together, the accused being 
herded in the lockup, regardless of their age or experience in crime. 
Special courts have now been created for women and young persons, 
the result being that those who are just entering a criminal life are 
treated with greater consideration and care and do not form those 
associations which are so often the cause of permanent delinquency; 
the Juvenile Court is now a well-established feature of every advanced 
city judiciary. And, through the efforts of the judges and the pro- 
bation officers connected with the courts, a large proportion of the 
young persons brought before the tribunal are saved from becoming 
a complete loss to the community. 

Execution of Decisions. — The Sheriff is the executive officer of 
the local county courts and if opposed by force he has power to en- 
roll as his assistants such a number of citizens as he may require to 
carry out the court decree, by forming what is known as a posse. If 
this is unsuccessful he may call upon the Governor for the militia 
and the Governor, if unable to cope with the disorder, may invoke 
the aid of the United States by a direct request to the President, 
as provided in Article 4 of the Constitution. The Sheriff also ex- 
poses for sale under orders of the court, the goods and property of 
debtors, and carries out important duties in apprehending and im- 
prisoning criminals, under orders of the courts. 

The Prosecuting Officer. — The position of the district attorney 
is a strategic one in the judicial system of every community. He 
is the public prosecutor in criminal cases; under the peculiar tradi- 
tions of our American law, he may wait until a formal complaint 
is brought to his attention, or, of his own initiative he may start 
proceedings against officers, using the powers of his office and of 
the courts to secure the necessary testimony. In this way, a prosecu- 
tor may be either supine or active. He may wait for complaints 
to be made or he may conduct his own vigil over the laws of his city 
and State. As a rule, the district attorney is inactive and takes it 
for granted that if the law is violated some one will be injured and 
will complain. Such an officer usually conducts his prosecutions 
from the routine evidence produced by the police department. Occa- 
sionally, however, there steps into office a man of different type who 



THE STATE 337 

disregards the purely political aspects of his post and conducts it in 
an aggressive manner. It would be physically impossible for him to 
insist on the vigorous prosecution of all offences, nor would such a 
course tend to the best interests of the community. He therefore 
selects a limited number of important cases, regardless of the police 
reports and often gathers the evidence through his own agents : and 
prosecutes on his own initiative without waiting for complaint. 
Such men have inevitably won great prestige or advancement be- 
cause of their stand; and many of them have established a national 
reputation and have received high public office. Among such may 
be mentioned William T. Jerome of New York City, Joseph W. Folk 
of St. Louis, Charles S. Whitman of New York, Francis J. Heney, 
and numerous others. 

Cases are formally recorded for prosecution in the district attor- 
ney's office, after an indictment has been found before a grand jury. 
It is not necessary as popularly supposed, that the district attorney 
must prosecute all indicted persons to the utmost limit of the law, 
regardless of his belief in their innocence or otherwise. It is his duty, 
as repeatedly established in court, to ascertain the guilt or innocence 
of persons and act accordingly, regardless of the indictment. It 
is now also well established that he may legitimately abandon many 
cases on his docket where the ends of justice would not be served 
by a continuance of prosecution. Among the many types of cases 
which fill the dockets of the district attorney's office in every city 
and are properly cleared away without prosecution, are the minor 
offences in domestic relations, cancelled after a reconciliation is ef- 
fected, innumerable assault and battery cases which are similarly 
patched up, etc., but along with these are others of a graver nature 
which should not be dropped but are often abandoned for reasons 
which the public would not approve. Among these latter are prose- 
cutions of fraudulent debtors; too often the creditor accepts a com- 
promise and agrees to ask the district attorney to cease criminal 
proceedings; election fraud cases are quite usually allowed to fall 
by the wayside unless pushed by some vigorous citizens' league, 
and in general the petty thievery and thuggery practiced by the sub- 
merged portion of the dominant "organization," in municipal politics. 

Judicial Safeguards. — In all criminal cases and civil suits above 
a certain value, usually $15 or $20, a jury trial is required by the 
State constitution. Before a person can be trial for a crime, an 
" indictment" or formal accusation must be drawn up and ap- 
proved or found to be a "true bill" by a grand jury; this body IS 
usually composed of 2$ members who ascertain whether there is 
Sufficient probable cause for the detention and trial oi the accused. 
In our early history the people were much concerned to prevent the 

prosecution and punishment of innocent persons and accordingly 

all attention was focussed on the safeguards to be thrown around 

'The district attorney is usually authorized to employ a small number oi 

detectives independent!) of the city force. 



338 THE NEW AMERICAN GOVERNMENT 

the accused. But the accused has been so thoroughly protected 
that under our changed conditions he stands more than an even 
chance of escape and there is a growing sentiment in favor of protect- 
ing society from the criminal by removing some of these technicali- 
ties of procedure. 

There are so many of these safeguards and technicalities that it is 
often an easy matter for a skillful attorney to secure an acquittal or 
a light punishment for men who are undoubtedly guilty of the most 
heinous crimes. The common methods of doing this are to claim 
any of the following: 

The indictment or accusation found by the grand jury does not 
clearly state the crime; or 

It does not state that the act is forbidden by law; or 

The law itself is not sufficiently clear as to the exact criminal act 
which is to be punished; or 

The indictment mis-names or wrongly names the person accused; 
or 

The crime was committed more than two years ago and the 
accused is therefore freed under the Statute of Limitations; or 

That in the trial itself the rights of the accused were violated 
by trying him in a heated state of public opinion; or 

By allowing certain evidence against him to be produced which 
should not have been admitted, or 

By refusing certain evidence in his favor, or 

By the Judge's decision on certain matters of fact which should 
have been left to the Jury to decide; or by the partiality of the 
Judge's charge, etc., etc. 

If any of these or of a thousand other claims is allowed, the 
prisoner escapes or secures a new trial, no matter how perverted or 
dangerous he may be nor how abominable may have been his 
crime. On the other hand, a poor or ignorant person, weakly de- 
fended by an incompetent attorney, may be and often is heavily 
dealt with regardless of the nature of his offence. The safeguards 
of our criminal procedure originally designed to protect the lowly 
against the great power of a royal government, are now a con- 
venient and easy means of escape for the cunning, rich and un- 
scrupulous evil doer, while the poor and ignorant are too often 
unprotected. So far has this dangerous condition developed that 
it is now well described in the cynical aphorism, — "It's not safe to 
steal less than a million." The progressive elements in the legal 
profession are attempting to remedy this condition by two impor- 
tant changes: 

1. A less technical, literal interpretation of the law in order that 
no conviction or trial shall be set aside unless a real and substantial 
violation of the principles of legal procedure has taken place. 

2. A much more important and active part should be taken by 
the Judge. He should conduct the trial. At present he is not a 
Judge in any serious sense but a moderator who merely tries to 



THE STATE 339 

insure fair play for both sides in the battle of words, occasionally 
being called on to interpret the rules of the game. So long as our 
Judges occupy this position of referee it is impossible to avoid the 
perversion of justice already described; there must be a willingness 
on their part to participate actively in the trial and to assume full 
responsibility for its successful conclusion. Such an attitude on 
their part would at once put an end to the continuous bickerings 
between counsel which are now so common, and would shorten the 
proceedings and reduce the cost of both civil and criminal suits. 
These changes are not based on theoretical principles of law but 
have long been practiced in the English and Continental courts 
where justice is dispensed quickly, without useless technicality, 
and far more fully and cheaply than in our own country. 

Former Judge Baldwin, in his American Judiciary, accounts 
for the law's delays chiefly on the grounds that the judge has less 
power to expedite trials in the United States than in most countries; 
the many reasons for which an appeal may be granted from the 
decision of the lower courts and the overcrowding of the appellate 
docket of the higher courts; the extreme to which we have gone in 
guaranteeing a jury trial with its delays, to all civil and criminal 
cases; the fact that American lawyers prepare and try their own 
cases in court and are therefore not as expert nor as quick in pro- 
cedure as are the foreign lawyers, who are either solicitors preparing 
cases exclusively, or barristers, trying cases exclusively, — the bar- 
rister is a specialist in court trials, whose standing and income 
depend upon the large number of cases which he argues; the Amer- 
ican custom of stating the grounds of a case in broad, general terms 
and making supplementary motions, corrections, and additions 
after the case has come to trial, thereby taking up many needless 
hours and even days of the time of the court. 

REFERENCES— THE EXECUTIVE 

Proceedings Annual Conference, of Governors, Colorado Springs, 1913. Admira- 
ble practical discussion of vital questions in State government. 
Finlev and Sanderson : The A merican Executive. 
F, J. GOODNOW: The Administrative Law of the United States. 
J. A. FairLIE: The Slate Governor, Michigan Laic Review ', March, n)i2. 
L. A. Blue: The Governor, University of Pennsylvania Thesis, iooj. 

QUESTIONS 

1. Why has the Governor been given such a weak position by the State 
constitution and laws? 

Mention the more important officials of Slate administration. 

■;. Which ol" these are elected and which appointed by the Governor in your 
State? 

4. How is the Governor nominated in your State? 

5. What are the qualifications of the Governor? 

0. Give some idea of tin- terms of office common in different States. Is a 
long or a short term more desirable? Reasons. 

7. (Jive some idea of the salaries paid by different States. 



340 THE NEW AMERICAN GOVERNMENT 

8. What are the Governor's most important powers? 

9. Explain the method of making appointments. 

10. What are your impressions as to the advantages and disadvantages of 
senatorial approval of appointments? 

11. A new Governor elected on a platform favoring certain new laws finds a 
strongly organized opposition intrenched in the legislature. What steps can he 
take in the impending struggle to carry out the platform pledges? 

1 2. Why does the Governor so often make use of the veto power? 

13. Prepare a brief summary of the extent of the Governor's power of re- 
moval in your State and discuss the advisability of extending this power, in- 
cluding a statement of the offices to which it should be extended. 

14. Why is it difficult, if not impossible, for the Governor to supervise and 
direct the State administration as the President does in the National Govern- 
ment? 

15. Why has the Governor been made a member of so many boards? Can 
he attend to the duties of these boards? 

16. How could the Governor's supervision and control of the administration 
be increased? 

17. Outline briefly the causes of the dependence of the Governor upon the 
party leader of the State. 

18. Why is a young, ambitious man as a rule not favored by the lead?r for 
the governorship? 

19. Explain the forces, and the clauses of the Constitution which favor each 
side in a conflict between the governor and the party leader. 

20. Outline the military powers of the Governor. 

21. Explain the writ of habeas corpus and the effect of its suspension by the 
Governor. 

22. What are the Governor's powers in cases of extradition? What are his 
duties under the National Constitution? 

23. If the Governor of your State refused a request for extradition by an- 
other State, what could the authorities of the other State do? 



REFERENCES— THE LEGISLATURES AND COURTS 

P. S. Reinsch: American Legislatures. 

Sheldon and Keegan: Legislative Procedure in the 48 States, Nebraska 
Legislative Ref. Bureau, Bulletin No. 3, 1914. 

Herbert Croly : The Promise of A merican Life. 

Legislative Systems: Kansas Legislative Ref. Dept., Bulletin No. 1, 19 14. 

Simeon E. Baldwin: The American Judiciary. 

Gov. George H. Hodges: The Distrust of State Legislatures — The Remedy 
See Appendix. 

QUESTIONS 

1. Outline the main features of State legislative organization and explain 
its similarity to that of Congress. 

2. Does the majority party have a greater or less control of the State 
legislature than has the majority in Congress? Give some examples of its 
powers. 

3. How would you explain the fact that unpopular and even crooked 
measures have so much better opportunity to pass in the State legislature than 
in Congress? 

4. Why has public confidence in the State legislature been lost? 

5. Prepare a brief essay, showing the attempts made in State constitutions 
to limit the powers of the legislature, to govern its procedure and to prevent it 
irom doing harm to the interests of the State. 

6. How would you answer the argument that the legislature is composed of 
the lower classes? 



THE STATE 34 1 

7. What do you consider the strongest need of the legislature in order to 
rehabilitate it in public confidence? 

8. Give some idea of the size of the two Houses, with example. 

9. How large are the Senate and the House in your State? 

10. Is the session of your legislature limited in time? Reasons. 

11. Get the opinion of an experienced newspaper man on the advantages 
and disadvantages of a time limit. 

12. Outline briefly the views of Governor Hunt of Arizona on the relations 
between the Governor and the legislature. 

1 3 . Explain the need and work of a legislative reference bureau. 

14. Have you such a bureau in your State? What are your impressions a 5 
to the advantages for your State? 

15. Explain the work of the Wisconsin revision committee and its effects oa 
the quality of legislation. 

16. What is a lobby and why is it necessary? 

17. Summarize some of the evils which have arisen from the lobby and the 
way in which the States have coped with this question. 

18. How does the number of members affect the trustworthiness and effi- 
ciency of the legislature? 

19. Explain Governor Hodges' suggestion on this point and summarize his 
reasons. 

20. Give your own impressions of his plan. 

21. What are the proposals of the Oregon citizens committee and give your 
impressions of their value. 

22. Prepare an essay on responsibility and efficiency in the State legislature 
and the means of securing them. 

23. Explain the system of Courts in your State. 

24. How do the tenures of the judges vary from those of other officers? 
Examples. 

25. How are the judges chosen in your State? 

26. Mention some other methods and give your impressions as to which is 
the better and why. 

27. Why have special courts been so frequently established in recent years? 

28. Has the plan been a success or failure? Examples. 

29. Explain the general position and powers of the sheriff in the Court sys- 
tem of your State. 

30. Outline the main duties of the district attorney and show why he occa- 
sionally becomes a popular hero in the political strife of the city or county. 

31. Why does the district attorney abandon or drop so many indictments? 

32. Outline the more important judicial safeguards thrown around the 
accused in criminal trials. 

$^. Give your impressions as to the effect of these safeguards in aiding or 
hindering a reasonable administration of justice 1 . 

34. How is it proposed to remedy these difficulties? 

35. What are the causes of delay in civil suits? 



CHAPTER XVIII 

THE STATE AND ITS WORK- 
BUSINESS PROTECTION AND REGULATION 

The question "What is the State doing for its people?" is so 
much more important than the forms, the methods and the ma- 
chinery of its government that we must devote the larger share of 
cur attention to the work of the State. In examining this activity 
we shall concentrate upon certain fields which are of special interest. 
These are: 

Business Protection and Regulation, 

Health, 

Education, 

Labor Interests, 

Highways, 

Charities and Correction. 
In each of these departments of work, recent years have seen the 
rise of new and important problems for which the State govern- 
ments are now seeking a solution. For greater convenience the 
recent interpretation by the courts of the State's constitutional 
authority over each of these fields is given in the Chapters on 
Constitutional Protection of Business, and The Police Power. 

Business Protection and Regulation. — The regulation of our 
business companies has usually been undertaken in order to protect 
the consumer, the investor, and often to protect the companies 
themselves, as producers. Regulation has run along the following 
main lines: — (a) The grant of charters of incorporation, and the 
issuance of permits to companies from outside, to transact business 
within the State; (b) The special supervision and control over 
banking, insurance and similar fiduciary businesses; (c) The regula- 
tion of charges, services and accounts of railways, common carriers 
and public service corporations; (d) The attempts to maintain fair 
conditions of trade and competition. 

(a) Charters. — In the grant of charters, our States have estab- 
lished some executive office, usually the Secretary of the State, 
where, upon compliance with the general laws, the incorporators of 
a new company may secure a charter. As a fee or tax is usually 
charged for this purpose, certain Commonwealths have fallen into 
the practice of bidding for this "trade" by reducing their require- 
ments, except the fee, to a practical nonentity, in this way attract- 
ing to their capitals the lucrative business of chartering corporations 
on a wholesale plan. Delaware, West Virginia and until 1913 New 



THE STATE AND ITS WORK 343 

Jersey have freed themselves of much of the burden of ordinary 
State taxation by this practice. A charter once secured in one 
State, the company may transact business in others upon comply- 
ing with their general laws. 

The usual requirements necessary for obtaining a charter include 
a statement of the purposes, name, amount of capital, plan of 
organization and names of incorporators of the new company 
besides the payment of a fee to the State. For certain financial 
companies such as banks, insurance companies, etc., additional 
safeguards are required. Most of the requirements are purely 
formal and the State officials may not exercise their discretion in 
granting or withholding a charter but are usually obliged to make 
the grant as soon as the necessary qualifications have been fulfilled. 
The charter is the constitution of a corporation, outlining the pur- 
poses of the company, the authoritier by which it is to be managed, 
the rights and duties of its " citizens" or stockholders. In all of 
our States a charter may be forfeited or cancelled if the corporation 
exceeds or abuses its charter powers. The fact that charters are 
never so cancelled by the State shows that this provision is in 
practice a dead letter. The State control over corporate activity, 
through the laws governing charters, is therefore very slight in 
extent and unsatisfactory in operation. The only real regulation 
occurs after the company has been chartered and has begun busi- 
ness. Outside, or as they are called, " foreign " corporations wishing 
to transact local business within the State may be required to take 
out a license or permit, and this permit is usually issued by the 
Secretary of the State upon payment of a fee. The fee is oftentimes 
so heavy as to become a burden on the company's business. This 
is discussed in the Chapter on Unconstitutional Taxes. 

(b) Banking and Insurance. — The most familiar instances of 
State regulation are seen in the case of financial institutions. These 
businesses are so interwoven with the warp and woof of our com- 
mercial fabric, and their stability is so necessary to the successful 
maintenance of business credit, that a special public interest in 
the security and reliability of banking and insurance corporations 
admittedly exists. The State therefore is obliged to surround enter- 
prises of this character with special safeguards for the protection of 
the entire community. Each commonwealth appoints a Superin- 
tendent or Commissioner of Banking and an Insurance Commis- 
sioner, with the necessary corps oi deputies, inspectors ami exam- 
iners. State banks and t rust companies are required to make 
semiannually and in some States quarterly, a detailed report oi 
their financial condition to the Commissioner. The latter if he 
deems it necessary may also order a special examination oi the 
books and vaults of any institution to ascertain its solvency and 
should such an examination show the company's entire inability to 
meet its obligations it is the duty oi the Commissioner to take 

charge of the assets and wind up the affairs of the corporation. 



344 THE NEW AMERICAN GOVERNMENT 

Similar provisions apply to the powers of the Insurance Commis* 
sioner. 

Insurance regulation by the Commonwealths, while partially 
successful in preventing the more disastrous effects of fraud and 
weakly capitalized companies is not entirely satisfactory, since 
it involves too heavy a burden upon the large concerns doing 
business in several States. The entire cost of inspection must be 
paid by the company; each State also may legally insist on inspect- 
ing every insurance concern within its borders so that every com- 
pany may be subjected to an inspection in every State it enters. 
In many instances the fees are so heavy and the inspections so 
frequent as to constitute a serious tax on the business. The in- 
surance commissioner of one Western State, during a recent dull 
Summer season, decided to "inspect" one of the large New York 
life companies which did business in his State. With his assistants, 
who included members of his family, he travelled de luxe to the 
metropolis and for a week spent a couple of hours every morning 
in the offices of the company. The afternoons and evenings he 
and his staff devoted to harmless diversion and recreation, seeing 
the sights. Having vigilantly safeguarded his State's interests, 
at the expense of the company, he returned home, embodying in 
his inspection report copious extracts from the annual report of the 
company. There are many New York companies and many watch- 
ful insurance commissioners. The corporations on their part are 
obliged to charge an insurance rate sufficiently high to offset the 
extra cost of duplicated inspections, so that the insuring public 
is ultimately obliged to pay for a series of expensive investigations 
of each company, most of which add nothing to the real security 
of the insurance business. For these reasons the leading com- 
panies favor a national system of regulation. Such a system would 
undoubtedly have been established long since, were it not for the 
Supreme Court's ruling in Paul v. Virginia, 8 Wallace 168; 1868, 
that insurance is not commerce and is therefore not subject to the 
national power. This ruling has been reaffirmed many times, 
notably in N. Y. Life v. Deer Lodge County, 231 U. S. 495; 1913. 
The State Commissioner or Superintendent of Insurance ex- 
amines insurance companies, requires the maintenance of the proper 
reserve, issues and revokes certificates permitting outside compan- 
ies to transact business within the State, and supervises the wind- 
ing up of the affairs of insolvent and defunct concerns. In case 
any insurance company is found to be fraudulent, or illegally or- 
ganized, or is about to fail, the Superintendent suspends its officers 
from control and takes entire charge of its affairs until the court 
appoints a receiver. The regulation of insurance has gone still 
further in Wisconsin and some other States where the laws provide 
that the contract conditions must be clearly expressed in the policy; 
there must be publicity of accounts; reasonable precautions must 
be taken to minimize litigation, and in order to reduce the cost 



THE STATE AND ITS WORK 345 

of insurance to the policy holder, the proportion of the premium 
which can be collected for " expenses" is limited, and the amount 
expended is limited to the amount so collected. Companies must 
not pay exorbitant commissions to agents for getting new business 
and take the amounts necessary to do so from old as well as new 
policy holders. One clause of the Act, which has caused two com- 
panies to withdraw from the State, provides that a company which 
professes to allow its policy holders to participate in the profits 
of the business, must file a statement showing what share of the 
total profits does so reach the policy holders. These requirements 
have greatly lessened the cost of life insurance in Wisconsin, and 
in order to lower the price further, the State has provided for the 
maintenance of a "Life Fund" for insurance purposes. Policies 
of from $500 to $3,000 are to be written by the State itself. The 
wisdom of this latter plan may well be doubted, as the very essence 
of insurance is that it should rest upon the broadest possible basis, 
and any attempt to limit its application to the people of a single 
State, or to administer it within a single State only, would seem 
to be a denial of the basic principle on which life insurance is built. 
It is also the testimony of competent observers that a very small 
proportion of the people insure themselves unless persistently 
solicited to do so. If the State cuts down on this expense and abol- 
ishes the whole system of professional solicitors, it must mean the 
very great reduction in number of those who insure, which involves 
a serious disadvantage to the community. The usual type of bank- 
ing inspection is illustrated by New York, in which State a Super- 
intendent of Banks, appointed by the Governor, directs the super- 
vision of State banks and trust companies. Examinations are made 
at least once yearly and oftener when he deems it necessary; if a 
serious impairment of capital occurs in any bank he may require 
it to be made up. Safe deposit, building and loan associations and 
investment companies are also inspected and periodical reports 
required by law. When a bank becomes insolvent the Commis- 
sioner takes over its assets and distributes them, winding up its 
affairs in the interest of the depositors and other creditors and if 
necessary calling upon the stockholders for the additional funds 
which may be required. 

The Kansas Blue Sky Law. — The protection of the investor is 
now coming into the foreground. In 1909 an investigation by the 
Kansas Bank Commissioner, Hon. J. M. Dolley, indicated that 
Kansas investors had lost from four to six million dollars annually 
in worthless stocks and bonds, which had been promoted Largely 
by outsiders. From this study of the question he proposed that 
the State should devise some means of prevention or inspection 
which would protect its people from the grosser forms of imposition. 
It was not his thought that every Kansas investor should be safe- 
guarded against all possible Kiss in speculation, but rather that it 
should be rendered difficult, if not impossible, for the promoter of 



346 THE NEW AMERICAN GOVERNMENT 

worthless securities to perpetrate what was in substance if not in 
form, a fraud upon the investing public. The Commissioner 
calculated that the loss from this source was greater than from the 
failure of banks. He reasoned that banks throughout the world 
are government-supervised with the greatest care, and that no 
objection to this principle has been raised for decades. He asked 
pertinently why one branch of the investment business should be 
scrupulously controlled, while men in another branch are allowed to 
offer stocks which have no basis except the blue sky above and the 
paper on which they are printed. He estimated that fully 99% 
of all the money placed in mining stocks is a complete loss. At 
first Mr. Dolley's plan was to establish a bureau of advice for in- 
vestors in the State, informing them whether or not the concerns 
in which they were about to purchase stock were clearly fraudulent. 
This work multiplied so rapidly that the Commissioner prepared 
a bill which was passed by the State legislature and which requires 
all individuals, firms or corporations doing business or selling stocks 
within the State to file a financial statement of the concern with 
copies of its charter and by-laws and any other pertinent informa- 
tion which the Bank Commissioner may require, and to secure a 
permit from such Commissioner before selling stocks, bonds or 
securities within the State. It also authorizes the Commissioner 
to examine such concerns in the same general manner in which 
he examines banks, and to issue a permit if upon such examination 
the enterprise promises returns on the investment, or to refuse such 
a permit in case it does not. The effect of the law has been to rid 
the State of stock fakirs and "blue sky merchants." "The law 
has been so thoroughly advertised in Kansas that when an agent 
approaches an investor the first thing the investor wants to see is 
his permit from the banking department." l 

The Act has aroused much criticism in outside circles, but within 
the State it has found great favor and its results have been even 
better than were expected. In the first year and a half of its ex- 
istence on the statute books, approximately 1,500 companies applied 
for permission to transact business in the State; over three-quarters 
of these were fraudulent or improperly managed concerns which 
could offer no return on the capital invested — they were chiefly 
mining, gas and oil companies — of the remainder a large proportion 
were speculative companies of a dangerous character. Upon being 
investigated, many of them withdrew their applications for per- 
mission to enter the State, and less than one hundred of the entire 
number received the Banking Commissioner's approval. Well 
satisfied with the effect of the law the legislature has extended it 
to include companies selling land, and has required such corpora- 
tions to show the truthfulness oi : their statements in certain ini- 

1 Letter of J. N. Dolley to Clyde L. King, Editor of the Regulation of 
Municipal Utilities, page 260. Published in National Municipal League Series 
by D. Apple ton and Company. 



THE STATE AND ITS WORK 347 

portant points, such as the improvements made upon the land, 
etc. Other commonwealths having followed the example of Kansas 
in the work of protecting their investors from the grosser forms of 
stock swindling, the constitutionality of this form of State regula- 
tion is now being tested in the Federal courts. 

(c) Railway Regulation. — Much of the State's reputation for 
bungling and harmful interference with business has been earned in 
the field of railway regulation. As we have seen when considering 
the Federal control of commerce, the commonwealths have been 
permitted by Congress and by the Supreme Court to extend their 
regulations over a wide expanse of national trade which lay within 
their borders, so long as the question involved was a distinctly local 
one. They have used this power to the utmost, both wisely and 
unwisely. Whether animated by the desire to protect their people 
or in some instances by other motives, they have left almost no 
point untouched in the whole department of railway transporta- 
tion. At first this regulation was carried on entirely by the State 
legislatures themselves which saw in it a valuable opportunity to 
increase their popularity. In doing so, they provided rules and 
regulations on every conceivable question and finally fixed even 
the charges for freight and passenger traffic. 1 After some suc- 
cessful and many disastrous attempts of this kind it became clear 
that the legislature, even when honestly desirous of establishing 
only the best and the wisest standards, could not possibly master 
all the infinite, technical detail of the railway business sufficiently 
to make practical or wise rules for it. Nobody who examines the 
State laws of the period which has just closed can believe the 
State legislature qualified for this important and difficult task. 
The complete breakdown of legislative control suggested the idea 
of a small administrative body which would avoid the temptations 
to eloquence, oratory and the necessity for making political capital 
out of a business question. This latter pitfall has been the greatest 
cause of legislative failure. Anyone who arose upon the stump 

1 The following are examples of many affairs so regulated: 

Health quarantines in cases of epidemic. 

Prohibition of ordinary wood or coal stoves in railway passenger coaches. 

Regulation of bridges, — now reserved by Congress. 

Requiring the stopping of a certain number of trains daily at places of a 
certain size. 

Keeping city ticket offices and depots open certain hours during each day for 
the convenience of the public. 

Forbidding the transport of certain dangerous articles such as explosives, 
without a license. 

Regulating the speed of trains in cities and towns. 

Prescribing color tests for the eyesight of engine drivers, etc. 

To these the Supreme Court added in I lie Minnesota Kate Cases in 1913, the 
power to regulate freight rates on shipments entirely within a State, even though 
by so doin-; the rates on national traffic passing through, are changed, unless the 
national commission has regulated the subject. There are countless other 
matters of railway law which the States have been permitted to control until 
such time as the national authorities act. 



348 THE NEW AMERICAN GOVERNMENT 

and suggested that the rights of the railway be reduced or its duties 
increased or its charges and rates diminished, acquired instantly 
a political following which the opposing party could only combat 
by making still higher and more urgent demands. Undoubtedly 
the railways had done their part to bring about this popular hos- 
tility. In the past their promoters and some of their directors and 
managing officials had violated every known rule of common 
honesty towards the public and the stockholders, and had then 
abandoned the properties to the vengeance of the public. Many 
of the construction company heads, promoters, financial agents 
and railway wreckers have been among the first and loudest to 
declaim against any " government interference with legitimate 
business interests," — a fact which has greatly beclouded and re- 
tarded the proper settlement of the whole problem and has not 
softened public opinion towards the companies. 1 But whatever 
the position of the railways has been the people have nothing to 
gain from persecution and it was this belief in the wisdom of making 
a fresh start with fairness to both sides in the future, which finally 
led to the adoption of the commission plan. 

Railway Commissions. — The Western States, where the farmers 
had found the railway rate problem of special importance in ship- 
ping their grain, were the first to adopt the commission plan. The 
body usually consists of from three to seven members, appointed 
for a long term by the Governor, and assisted by a small force of 
inspectors, accountants and clerks. It is modelled on the interstate 
commerce commission, both as to form and general authority. The 
commission is usually given power: (a) to regulate rates, — by fixing 
the maximum figure, by determining what shall be a reasonable 
charge, and by suppressing discrimination as between the large and 
the small shippers; (b) to control the service, — by requiring greater 
frequency of trains, better connections with junction points, and 

1 At a time when the companies were making every effort to secure from the 
Federal commission the much needed increase of 5% in their freight rates which 
was recently granted and the press was full of demands for the encouragement of 
honest and legitimate railway management by granting the increase, the public 
was suddenly astounded by schemes of financial juggling which have not been 
equalled since the age of Jay Gould and the Erie. One large eastern road had 
started out to establish an air-tight monopoly of transportation in New England 
by buying up all competitive shipping and trolley lines. In the process immense 
sums were paid for properties of little value, for the good-will of persons who had 
"influence" and in profits to helpful "syndicates"; and one sum of $30,000,000 
of the stockholders' money had vanished into thin air and could not be traced. 
Another line, in the West, had sold a large issue of bonds to investors both here 
and abroad. Almost immediately it defaulted on its interest payment and it was 
discovered that several of the directors had built a side line and sold it to their 
own company at a colossal profit, — a price far beyond its value — hence the 
default. These and similar escapades are the real causes of popular distrust of 
railway management, in which the good have suffered with the evil. See testi- 
mony of Ex-President C. S. Mellen in the interstate commerce commission 
investigation of the New Haven Company and the evidence in the receivership 
proceedings of the St. Louis and San Francisco Railway, 19 14. 



THE STATE AND ITS WORK 349 

more regard to the convenience of the shippers and the travelling 
public; special emphasis is also laid upon safety of rolling stock and 
roadbed; (c) to supervise railway accounts, — by requiring reports 
and uniform accounting methods; (d) to control the capitalization 
of the railways, — by granting or disapproving increases in capital 
or permission to construct new lines, and by valuation of the 
properties, for purposes of rate control; some of the commissions 
have worked out an excellent system of valuation and this is now 
being accomplished for the whole country by the national commis- 
sion. 

Much good has been done by these bodies. They have won out 
in the most difficult task of establishing greater fairness of treat- 
ment among shippers, they have reduced many inequalities in the 
transport rates of different districts in the State and have greatly 
improved the convenience and other conditions of the service. 
But railway regulation by its very nature cannot be carried on by 
two conflicting authorities and in spite of the efforts of legislatures 
and courts, the State laws have slowly but surely encroached upon 
those national railway matters which ought either to be left free 
from interference or subjected only to the national control. The 
States conflict also with each other, their regulations are diverse and 
even based on different principles. A line running through two 
States is subject to three regulations, each made by a separate, 
independent authority. Such diversity cannot but injure the 
carriers and hold back their proper development by many years, 
while depriving the people of their benefits. This is especially 
true of the charges for transportation. The commissions have at 
times worked serious injury by lowering rates below the margin of 
profit. Whatever may have been the sins of the carriers in the 
past, their present managements cannot justly be held responsible 
nor can the present stockholders be fairly deprived of a return on 
their investments. Even where the State commission does not 
desire to inflict such an injury, it is often incapable of establishing 
an official system of rates without seriously changing the whole 
conditions of interstate business. The entire problem of railway 
charges is so inseparably bound up with outside traffic conditions 
that in most commonwealths it is impossible for a State authority 
to regulate with fairness to all concerned. Both the making and the 
regulation of rates are national in their scope. Every year makes it 
clear that State control of transport rates must go and its place be 
taken by national regulation. In all other respects the State com- 
missions have proven so far superior to the legislatures as a means oi 
regulation that the Commission plan now seems a permanent fea- 
ture of State government. 

National Control of State Rates. The decision in the Shreve- 
port case,' holding that State rules, fixing railway rates within a 
commonwealth, are subject to revision by the national commission 

1 Houston, East and West Texas Railway Co. 9, U, S., -\;j U, s. 34a; 1014. 



350 THE NEW AMERICAN GOVERNMENT 

when they affect interstate traffic, points to the ultimate control 
of most local rates by the interstate commission. Since this body is 
already overburdened by its present duties, an increase in its 
activities would require some change in organization. The most 
feasible solution of the problem seems to be to add a series of 
Federal district commissions, perhaps six in number, each with the 
present powers of the national commission in its district, and with a 
right of appeal by either party from their rulings to the central 
body. These six districts might correspond in the main to the six 
groups of railways which have grown up in the country, with their 
distinctive conditions of traffic, that is, the Southern, which is 
East of the Mississippi and South of the Potomac; the Trunk Line 
which is North of the Potomac and East of the Mississippi; the 
Mississippi Valley, including the district between the Missouri and 
the Mississippi; the Western, covering all the district beyond the 
Missouri; the South Western, including the lines South West of 
St. Louis; and finally the New England section. The district 
commission in each of these territories would speedily familiarize 
itself with the peculiar traffic and business conditions of its zone and 
would dispatch its work much more quickly than is now possible. 
It would also take over all rate and service regulations even of the 
intrastate lines so far as these affect interstate shipments. The 
right of review by the central commission at Washington would 
preserve the uniformity of decisions and principles. Such a plan 
would offer a quick and uniform settlement of rate problems and 
would avoid all that expensive, time-consuming and destructive 
conflict and diversity of regulation that we now have. 

Public Service Commissions. — As popular sentiment on this 
question has developed, other public companies besides the rail- 
ways have been regulated by the State; the express company, 
water supply, warehouses, telephone and telegraph, gas and 
electric lighting and power, street railways, etc., have all been 
placed under public supervision. To do this work the State has 
created a " public service commission," which is simply a railway 
commission entrusted with broader powers to include the other 
enterprises just named. The purpose of this plan is to divorce 
all corporate regulation from politics by taking it out of the hands 
of the legislature and placing it in the control of a small administra- 
tive body, copied after the national commerce commission. The 
decisions of such a body are not based on excited oratory, nor do 
politics enter into its rulings. Its work is to examine the facts of 
the case, to hear both sides and render a decision which is just and 
equitable to both the consumer and the corporation shareholder. 
Its proceedings are for this reason more like those of a court, but 
are much more informal and rapid, and are divested of many of the 
technicalities, delays and expense of court procedure. 

The public service commission plan satisfies two important 
needs — 



THE STATE AND ITS WORK 351 

a. A suitable protection of the public both as to service and, rates; 

b. The safeguarding of the corporation itself from those radical 
and violent political attacks by the legislature which cripple corpo- 
rate property. 

The general demand for such a system is shown by the creation 
of these administrative bodies, under different names and with 
varying powers, in 33 States and the District of Columbia, and the 
consideration of similar action by the legislatures of the remaining 
commonwealths . 

The Maryland Commission. — A simple example of this authority 
is provided in the Maryland Act which establishes a Commission of 
three members appointed for six years, one member going out of 
office every second year. The Commission employs two attorneys 
as permanent counsel, a secretary and an adequate force of ac- 
countants and clerks. Its jurisdiction covers railways, both steam 
and electric, other common carriers, gas, heat, light and power 
companies, telegraph and telephone lines and water supply com- 
panies. The law forbids Commission members from recommend- 
ing the appointment of any person for employment by any corpora- 
tion, or from receiving free passes, reductions in rates or gratuities or 
gifts of any kind, nor may a corporation offer such gratuity or 
employment. The records of the Commission are public and open 
to inspection, but the facts in any case at issue before the Commis- 
sion may be withheld from publicity by it for ninety days. The 
Commission has power to subpoena witnesses and pay them for 
their attendance. In case of refusal to testify, a witness may be 
prosecuted before the ordinary civil or criminal courts. No witness 
is excused from giving evidence on the ground that he would in- 
criminate himself, but by such testimony he becomes immune from 
prosecution, — the corporation does not. 

The Commission has power: 

To require a safe, adequate and reasonable service. 

To require full statements from corporations as to their capital, 
their franchises, the ownership of their stock, the nature of the 
service performed, and their compliance with the law and with the 
orders of the Commission. 

To make switch and side-track connections on railways where 
these are required by business conditions. 

To require common carriers to file and print their rates. 

The Commission may also fix rates either on complaint or on its 
own motion. It may allow a carrier to charge more for a short 
haul than for a long haul over the same line. It may require a 
uniform system of accounts. Its approval is necessary for the 
construction of new railway properties and for the issue oi stocks 
and bonds by any public service corporation. It may also value or 
appraise the property of such corporations in order to form a just 
basis for their rates, to prevent them from being unduly deprived of 
their earning power. In ease of complaint to the Commission about 



352 THE NEW AMERICAN GOVERNMENT 

any rate or any question of public service furnished by a corpora- 
tion under its control, the Commission holds a hearing at which 
both sides are invited to appear. It then issues an order deciding 
the case, from which an appeal may be taken within sixty days to 
the courts. 

The great variety of matters both large and small which come 
before the Commission and the close relation which these have to 
the comfort, convenience and financial prosperity of all kinds of 
business interests within the State, are well shown by the following 
examples of complaints that have recently come before the Mary- 
land Commission and have been quickly and satisfactorily settled 
by it. 

Complaint by fruit shippers that two connecting railways failed 
to give sufficient service and rates for shipment of fruit. Satis- 
factory rates established two days later. 

Complaint against express company for failure to make delivery 
at residence of a consignee. 

Against street car company when conductors refuse to honor 
transfer. 

Petition for establishment of a passenger station in a rural 
district. 

Complaint against the dangerous condition of the roadbed of a 
street railway causing unnecessary noise and vibrations. 

Permit to sell securities, — "The said electric company is hereby 
authorized to issue and sell at not less than 95 per cent in cash its 
promissory note or notes running for three years with semiannual 
interest at the rate of 5 per cent per annum to the amount of 
$75,000.00 and to secure the same by the pledge of $222,000.00 
of its first mortgage 5 per cent bonds, which are to be included in 
the bonds deposited by the said consolidated company with the 
Continental Trust Company under the collateral trust agree- 
ment." 

The Wisconsin Commission. — The Railway Act of 1905 in Wis- 
consin was amended in 191 1 to include all public service companies; 
it provides for a Commission with extensive powers. Any shipper 
or consumer may bring his complaint before this body, the burden 
of proof being upon him to show the need for a change either in 
service or rates. If the Commission finds a rate unreasonable it 
issues a rule which can be changed only by the Commission itself 
or by appeal to a court. In case of appeal, the burden cf proof is 
then upon the person who appeals, to show the unreasonableness 
or illegality of the Commission's ruling. Full publicity of accounts 
of public service corporations is required. The appropriation for 
the Commission is made permanent and continuing, and remains in 
force until changed by law. The Act of 1907 provides for the valua- 
tion of public service properties when necessary in connection with 
the fixing of reasonable rates. Under the State and Federal Consti- 
tutions no person or company can be deprived of its property by 



I 



THE STATE AND ITS WORK 353 

the State without due process of law, 1 and, since every company 
is entitled to charge rates that will enable it to make a fair return 
on its property, it is essential for the Commission to know what is 
the value of that property. All of the newer State laws authorize 
the valuation of public service companies for this purpose of rate 
making. The law also provides that franchises of public service 
companies which have been granted for fixed terms shall be changed 
to permits for an indefinite term. The advantage of this plan is 
clear when we remember that capital invested in public service 
utilities, such as street railways, telephone, lighting plants, etc., 
requires some assurance of permanence in return for satisfactory 
service and rates. If the franchise is for a fixed term of years a great 
uncertainty as to the corporation's control of the property arises 
towards the close of the term, or a temptation to use questionable 
means to secure a renewal of the franchise when it expires. If the 
franchise cannot be renewed, the company allows its property and 
service to run down. There is no reason why the State should allow 
such a condition to exist. The indefinite term of the franchise or 
permit does away with this difficulty and enables the public service 
company to continue its arrangements with a much more stable 
and secure tenure, while at the same time it safeguards the interests 
of the consumer and secures fair treatment. In order to avoid use- 
less competition the Act of 1907 forbids a street or steam railway 
company to construct any new lines until it has received from the 
Commission, a certificate of public convenience and necessity. The 
common use of poles, conduits, etc., is provided, where this is feasible. 
The Commission also has the power to approve or disapprove the 
issue of stocks and bonds of public utility companies. There is no 
reason why $200,000 of capital should be invested in rival, competing 
public service companies if $100,000 will do the same work satis- 
factorily to the public. The result to the investors must be more 
favorable if useless competition is avoided. The older theory was 
that satisfactory public service could only be rendered by a company 
if it were constantly under the fear of successful competition from 
another concern. Regulation by a utilities commission, as we have 
just seen, avoids this danger while still assuring favorable conditions 
for the consumer. 

Appeals to the Courts. — In order to prevent undue delay by 
appeals to the courts from decisions of the State commissions, the 
laws provide that such appeals must be taken within a certain time, 
and, in some States, they go directly to the Supreme Court oi the 
commonwealth; in others they are all concentrated in the court oi 
the county or district in which the State commission has its seat. 
The newer laws provide also that the decisions oi the commission 
are prima facie reasonable; that is, that the burden oi proof is on 
the person who appeals from the ruling, to show that the decision 

1 Fora full exposition of these provisions oi the State ami National Constitu* 
tions see the Chapter on Constitutional Protection oi Business. 



354 THE NEW AMERICAN GOVERNMENT 

is unreasonable or illegal. The best solution of this important ques- 
tion has been reached by those States' which declare that the findings 
of the commission in matters of facts are final and that appeals may 
be taken only on matters of law. The Pennsylvania Act and those 
of some other States provide that if new evidence is disclosed during 
the court hearing, the suit is suspended and the evidence submitted 
to the commission for its ruling, before an appeal can proceed. In- 
junctions to suspend the decisions of a commission may only be 
taken upon the filing of a bond which guarantees payment of costs 
and losses to the other party in case the injunction is later dissolved. 
The purpose of all these provisions is to give the commission's rulings 
a greater permanence and freedom from unnecessary interference 
by litigation. It was formerly the custom for companies against 
which complaint had been made to delay a final decision of the case 
until the snipper was so discouraged that he dropped the complaint. 
The Wisconsin Act accordingly provides that no appeal to a court 
shall suspend a ruling of the commission, until a judicial decision 
has been made. This makes it to the interest of both railway and 
shipper to expedite the case as rapidly as possible, both in the com- 
mission and in the court proceedings. In order to prevent surprises, 
or the withholding of evidence until the case finally goes to a court, 
the law now requires the evidence which is to be offered, to be pre- 
sented to the commission first. This prevents the concealment of 
evidence with a view to delay. 

The Pennsylvania Act. — Pennsylvania was among the last of the 
large commonwealths to establish a Utilities Commission. By the 
law of 1913 such a body was created with jurisdiction over 27 classes 
of corporations, including railways, canals, expresses, pipe lines, 
ferries, tunnels, bridges, wharves, grain elevators, telegraph and 
telephone, gas, water, heat, refrigeration, and sewerage. The usual 
regulative powers have been entrusted to the Commission; the Act 
also contains some features not usually found in other States. The 
Carmack Amendment is copied from the Interstate Commerce Act 
by which the initial carrier l is made liable for losses occurring on a 
connecting line, in cases of through shipment. The railways can 
then adjust the loss between themselves. The long and short haul 
clause is also included in the Act and the Commission can require 
uniform reports, uniform accounts, and a standard gauge. The 
importance of the standard gauge was emphasized recently in a 
report made by Clyde L. King, in 19 13, in the City of Philadelphia 
on the trolley freight situation. He showed that a difference in the 
gauge of the trolley tracks on some of the suburban lines made it 
necessary to transfer freight coming to Philadelphia from one car 
to another, increasing of course the freight charges and adding to 
the ultimate price to the consumer. Telegraph and telephone com- 

1 By initial carrier is meant the company which receives the goods for ship- 
ment. A shipper whose freight is lost or damaged on a distant connecting line 
will not have to sue the connecting company in a court remote from his home. 



THE STATE AND ITS WORK 355 

panies are obliged to allow their lines to be connected for through 
messages where they cannot furnish >uch through service over their 
own wires. There was some controversy as to the provision dealing 
with new issues of stock and bonds. It was felt by some that if the 
Commission were required to pass upon all issues of stocks and bonds 
there would be some danger that the Commission would feel com- 
pelled to keep rates and charges up to a point which would produce 
dividends on the securities so approved. On the other hand, some 
supervision over the issue of securities was regarded as necessary. 
These two ideas were compromised by adopting the suggestion con- 
tained in the report of the Federal Commission on railway securities 
which had been appointed by President Taft to consider the same 
question. The State Commission does not authorize the issuance of 
any securities. It is necessary, however, for the issuing corporation 
to file with the Commission a certificate of notification, containing 
all the facts with respect to the issue, and these facts thereby be- 
come public property with all the advantages which accrue from 
publicity. Penalties are provided for false statements and for failure 
to use the moneys so raised in accordance with the certificate of 
notification. 

Limiting Competition. — One feature of the new plan which has 
begun to attract attention is its influence in preventing the forma- 
tion of useless new companies in a field which is already well served 
by existing concerns. The unlimited right to organize a public 
utility company in all of our States, has led to the promotion of new 
enterprises regardless of whether there is a demand for them or not. 
This is often animated by the hope that the new franchise and char- 
ter will be bought up by the existing concerns through fear of serious 
competition. Public service utilities by their very nature are not 
competitive. We could not have several competing gas, telephone 
or telegraph lines in the same city, nor can we have rival street rail- 
ways, nor competitive harbor facilities, and our experience in the 
steam railway world has shown that competition does not long exist 
in that field. The public has nothing to gain by the promotion of a 
new company which appears to be a rival, about to start competition, 
but which is in reality nothing more than an attempt to force the 
owners of existing companies to buy the new one. If the attempt 
is successful and the combination of the old and new companies is 
formed, the public must pay by increased charges, or by poorer 
service, for the returns on the new stock issue. After many years 
of experience of this kind, the public lias grown distrustful of pro- 
posed competitive enterprises. The Slate commissions are now 
usually authorized to approve or reject the granting o\ franchises 
for such new companies, and their action is based on the needs of the 
locality. In using this power they have frankly rejected the competi- 
tive theory of public utilities and have established the principle 
that public regulation, rather than the loose competition of dupli- 
cate concerns is the solution of this question. An example is seen 



356 THE NEW AMERICAN GOVERNMENT 

in the recent decision of the new Pennsylvania Commission in the 
Ashland Case. The town of Ashland' was supplied by an electric 
company which was itself the fruit of a consolidation of two pre- 
viously competing concerns. In 1913 the Schuylkill Company pre- 
sented a petition with the approval of the borough authorities, asking 
that it be allowed to establish competitive facilities for light, heat 
and power. This would have inevitably produced either a duplicate 
set of poles, wires, conduits and power plants or the immediate pur- 
chase of one company by its competitor. In denying the application 
of the new Schuylkill Company the State Commission said: "The 
passage of the Act of July 26th, 1913, and of similar Acts in nearly 
all of the other States indicates a general judgment that a reliance 
upon competition between public service companies for securing 
adequate service and proper rates has not been successful and that 
hereafter supervision by properly constituted authorities is to be 
substituted. Long experience has shown that while the temporary 
effect of competition between public utilities occupying the same 
territory is to lower rates, the final result is likely to be the absorp- 
tion of one by the other and then an increase of rates to pay the 
expense of the warfare. The experience of Ashland which once 
had two or three competitive companies all of them absorbed by 
the strongest is an illustration. The municipality in the case of 
companies furnishing light is burdened with the inconveniences and 
difficulties which arise from the presence of duplicated poles and wires 
and finally has to pay at least a reasonable return upon the increased 
capital required by such duplication. The question always is by 
what means can the public convenience be best served. It may well 
be that occasions will arise when because of some fundamental defect 
in the service by the company in the occupancy of the territory, 
due to inadequacy of plant, want of financial strength, or some other 
reason, the public would be benefited by the introduction of a com- 
peting company. Such cases can be determined upon their own 
merits as they arise. No such difficulties are met with in the present 
case. The Eastern Pennsylvania Light, Heat & Power Company 
has occupied the territory for twenty-nine years. Its plant is ade- 
quate. It has supplied the municipality and the people during the 
entire period with comparatively little complaint. Should its rates 
be unreasonable, discriminatory or unduly burdensome, it is always 
within the power of the commission upon proper complaint to control 
them and afford relief. The commission is of the opinion that the in- 
troduction into the municipality of the poles and wires of a second 
company organized for purposes of competition would be at least 
of doubtful utility. The approval of the ordinance is therefore with- 
held and the application for its approval is dismissed." x Most of 
the commissions have used this power freely and have excluded so 
many new corporations from the field that the whole commission 

1 In re Petition of Schuylkill Light, Heat and Power Co.; Pa. Pub. Serv. 
Commission, Municipal Docket 1; 1914. 



THE STATE AND ITS WORK 357 

plan has become a strong protection to the stockholders of existing 
companies, and has safeguarded them from serious abuses which 
formerly affected not only the investor but also the rate-paying public. 

Conservatism of State Commissions. — The conservatism of the 
commissions is especially noticeable in the important matter of valua- 
tion of company properties. 1 Liberal additions and allowances are 
made for what are known as overhead costs; such as legal expenses, 
cost of superintendence, interest on capital during construction 
period, engineering costs and other contingencies. Conservative 
estimates of depreciation in the value of plants are made but the 
Commissions also allow for appreciation in value where such has 
taken place. Where a public service company has undertaken costly 
improvements such as repaving over its mains, etc., this cost has 
also been counted in the value of its property. The commissions 
have also included what is called the " going concern value" which is 
an allowance made for the expenses of starting the company and get- 
ting it into working order. All young companies have unusual ex- 
penses of this kind which mount up very heavily before the concern 
becomes a dividend payer. They include such items as the organiza- 
tion of an office staff, the sale of stock by promoters, the employment 
of solicitors to secure subscribers for the use of the telephone, gas, 
water supply or other facilities which the company furnishes. There 
is also necessarily some expense in experimenting and developing 
a business policy, all or the greater part of which must necessarily 
be included in the valuation of the company as a going concern. 

The Federal Supreme Court has recently added to the allowances 
to be made in this connection by declaring that the valuation of a 
public service company for the purpose of regulating its rates must 
even include the value of the right of an irrigation company to with- 
draw from a river the water which it distributes through its canal ! 
In San Joaquin Canal and Irrigation Co. v. Stanislaus County, CaL, 
233 U. S. 454; 1 9 14, the company had been denied its right to in- 
clude this valuation in its appraisal for rate-making purposes. The 
California Constitution contained a clause that water which was 
appropriated for sale was appropriated for a public use and it was 
claimed by the authorities of Stanislaus County that the company 
having so taken the water had no private right in the withdrawal 
of water and that this was further shown by the fact that anyone in 
the district was entitled to claim irrigation connections upon the 
payment of the required fee. The Court ruled, however, that even 
though the water was appropriated to a public use the company 
nevertheless had a monopoly of the right to water supply and that its 

1 See Recent Tendencies in Valuation for Rate-making Purposes, Edwin 
Gruhl, Annals of the American Academy, May, 1914, Valuations are necessary 
when a city desires to buy a k ;is or light plant for city ownership or when 
charges and rates are lowered by a commission and the corporation objects on the 
ground that it is being deprived of b fair return on the value of the property. 
The question then is what is the exact value of the property. It Is the duty of 
the commission to calculate this value. 



35& THE NEW AMERICAN GOVERNMENT 

privilege of withdrawing water from tjie river for this purpose had 
a real money value just as the roadbed of a railway, though devoted 
to a public use, yet belonged to the railway company and must be 
valued in appraising the company's property. The value of water 
withdrawal must therefore be included among the other rights and 
properties of the company in calculating the total capital upon which 
a legal return could be claimed by the company in making its rates. 

Results of the Commission Plan. — The practical working of the 
State commissions has been partly successful and partly unsatisfac- 
tory. Its great success has been the fair-minded solution which, on 
the whole, it has given to some of the most pressing, urgent disputes 
between utility corporations and the public. It has removed most 
of these from the sphere of partisan politics and has introduced a 
stronger tendency to co-operation and mutual good will. The com- 
missions have not shown the expected desire to lower rates, except 
on the railways, but have rather tended to improve service. Most 
of them are still new and are trying to develop systems of account- 
ing, are making studies of new classes of public utilities, examining 
service conditions and clearing up the large docket of complaints and 
grievances which had accumulated under the old system. The 
unsatisfactory sides of commission regulation have been the delay 
in securing a final settlement of disputed cases; the ultra-conservatism 
of some of the commissions; their interference with public ownership 
of utilities by the cities; and to some limited extent, partisan politics in 
the appointment of commission members, notably in New York City. 

Criticisms of State Commissions. — The most serious objection 
urged against the new plan has been the delay caused by dilatory 
appeals to the courts. Undoubtedly this is an important defect 
which requires correction. Some of the States provide that appeals 
from the commission on any subject shall be concentrated in one 
court, choosing for this purpose the county court in which the 
State capitol is located. Such appeals take precedence over all 
other business except election cases and suits for damages. This 
has been adopted in the Pennsylvania Act of 19 13. From this 
court an appeal may be made to the State Supreme Court. Clearly 
this is unsatisfactory because it permits two judicial proceedings 
after the order of the commission has been handed down. Some 
States provide for a direct appeal from the commission to the 
supreme court. This is the proper solution but in most of the 
commonwealths it is impossible because the original jurisdiction of 
the Supreme Court is limited by the State constitution. In New 
York the first commission, having charge of the New York City 
district, has been so overburdened by the mass of matters crowding 
upon it that its decisions have been delayed by overwork, a fact 
which has been made much of by critics in other States. This is 
not an objection to the commission system as a whole but is a 
proof of the need for an additional district with another commission 
to take care of the extra business. 



THE STATE AND ITS WORK 359 

Many observers have recently pointed to what they consider an l 
excessive conservatism in the rulings of the State commissions and 
have condemned the failure to secure lower rates, the unwillingness 
to force better service conditions and the appraisal at excessive 
values of public service plants which were about to be purchased 
by the city governments. 

Undoubtedly there is weight in some of these charges. The 
commissions, as we have seen, have not striven to reduce rates as a 
general policy but have laid greater emphasis upon improved 
service. While no comprehensive survey of the rulings of State 
commissions has been prepared, a partial examination of their 
decisions clearly shows the general improvement in service rules for 
the benefit of the consumer. The delay in securing a settlement of 
important questions is usually not chargeable to the commission 
but to the companies which make full use of their rights of appeal 
and delay. This, as we have seen, is not an inherent part of the 
commission plan but may be improved by constitutional or legisla- 
tive changes. As to the excessive valuation of public utility plants 
which are about to be purchased by the cities and the consequent 
defeat of municipal purchase because of the prohibitive price which 
results, the commissions have probably given cause for some 
criticism. 2 They have made many allowances of claims of value by 
the companies which could probably not be justified in detail nor 
even itemized by the commissioners themselves. Some members 
are secretly, if not openly, opposed to municipal ownership and 
their decisions reflect this hostility. 

In California, Colorado and other States each city has local 
option in the matter of establishing its own municipal commission 
or in subjecting its public utilities to the State body. The league of 
Nebraska municipalities, the league of commission-governed cities 
in Illinois, the voters' league of Minneapolis and the city authorities 
of Chicago have all made strong efforts to prevent the extension of 
State authority over the local public service. The principle of 
municipal home rule has been invoked. Thus far the State com- 
missions have come off victorious but there is a widespread demand 
for improvement, and a further adjustment allowing for greater 
local activity seems advisable. 

Lower Rates for Large Industrial Consumers. — It is also charged 
by the critics of the State regulative system that State commissions 
allow lower gas and water rates for large industrial companies than 
for small consumers. The acl ion o\ the Wisconsin commission in the 
Milwaukee gas and water cases and in the Waukesha gas ease is 
especially pointed to as proof oi tin's policy. In all three of these 
instances the Stale commission in revising rates, allowed the large 

1 A partial summary of these criticisms is given in an article, "State :. Local 
Regulation" by S. P. Jones, Secretary, Voters' League, Minneapolis, published 
in The Annals, May, 1914. 

•The State laws usually provide that in case any city wishes to purchi 
public service plant the valuation shall W- fixed bj the State commission. 



360 THE NEW AMERICAN GOVERNMENT 

consumer a very much more favorable tariff of charges than it 
gave to the small consumers, the latter being the masses of the 
people. In defence of this policy, however, Mr. Halford Erickson 
of the Wisconsin commission has pointed out x that public utility 
service charges must be arranged according to the total expense of 
the service. He claims that sometimes two- thirds or more of the 
total plant expense continues whether the amount of service per- 
formed is large or small. A water, gas or electric light plant, in 
order to be managed most economically, should therefore be run as 
continuously as possible. If all the electricity required of the plant 
is called for at night, for example, the result will be that the plant 
will be idle most of the time, but if during the daytime large con- 
sumers can be encouraged to use the current for power, the revenue 
of the plant can be very greatly increased without any great in- 
crease in expense. The same is true of gas, if the entire demand for 
gas is restricted to the nighttime, as in the case with the small 
consumers, then the plant will remain idle 80% of the time. In 
order to make this idle time productive, it is necessary to give 
lower rates to the large factory consumers to induce them to use the 
product and enable the plant to produce a larger revenue. It is 
claimed that by keeping the public utility plants busy and dis- 
tributing the load of business throughout the day, the rates to the 
small users may be reduced. Both gas and electric current are too 
costly for ordinary industrial purposes, — the only way to induce 
the big plants to use them is to reduce the price. This reduction is 
not made at the expense of the small consumer. On the contrary, 
it helps him although he has to pay more than does the manufactur- 
ing plant. This is the "step rate" plan, by which three or four 
grades of rates are charged according to the amount of current or 
water or gas used, and while the policy seems at first glance to dis- 
criminate against the masses of the people in favor of the large 
corporations, yet it is claimed to be a beneficial one, both in reduc- 
ing the cost of production and encouraging industry, while at the 
same time making it possible to give the small consumer an actual 
reduction in his charges. 

These briefly summarized criticisms show that the exact relation 
of the State commission to the municipal authorities has not yet 
been worked out satisfactorily. Some of the States have given no 
control whatever over city affairs to the State commission. Most 
of the newer laws do confer this authority and in principle it offers 
the best prospects of success, because many small cities are served 
by companies having central plants with inter-city relations and 
service, and requiring for their regulation a State authority. The 
rules of accounting and the employment of a staff of engineers and 
experts seem also better suited to the State than to local govern- 
ment. 2 We may balance against these criticisms the general satis- 

1 The Annals, May, 1914. 

2 In order to overcome the expense of high-salaried experts the mayors of the 



THE STATE AND ITS WORK 36 1 

faction given by the commissions in the assurance of a fair, public 
and constantly accessible tribunal for the settlement of all disputes 
between the public service corporation and the consumer. When 
the changes above suggested have been made, the causes of unneces- 
sary delay in appeals have been removed, the relations between the 
State commissions and the city governments satisfactorily arranged, 
a more equitable and scientific method of valuing local utility plants 
perfected and reasonable opportunities for the cities to acquire 
their public utilities provided, we shall have reached a solution of 
the most difficult problem now confronting the State government, 
(d). State Regulation of Trade Conditions and Competition. — All 
the States prohibit, either by statute or common law, any combina- 
tion to restrain trade unreasonably. These prohibitions have 
lain dormant upon the books until the recent Federal prosecutions 
under the Sherman law aroused new interest in the subject. It was 
found that for many decades the courts both in this country and in 
England had held that since the public were entitled to the benefits 
of free competition, every competitor must be allowed to sell as low 
as he pleased. But in fact certain large corporations, using this 
freedom to undersell their competitors in one section, made up their 
losses, from higher prices in other districts where there was no 
competition, and when the competitor in the first section was driven 
from business, prices were then run up to a higher level than before. 
The legal principle of free competition was used to destroy com- 
petition; an intended protection became an instrument of oppres- 
sion. Many efforts have been made to remedy this situation, one 
of the most effective being the South Dakota Act of 1907 which pro- 
vides that if any person or corporation engaged in the production, 
manufacture, or distribution of any commodity in general use 
within the State, knowingly, for the purpose of destroying competi- 
tion, discriminates between different communities in the State by 
selling its product at a lower rate in one community than in another 
(with due allowance for distance from the point of manufacture, 
freight rates, etc.), such person or corporation shall be guilt)' oi 
unfair discrimination, and subject to a fine of from $200 to $10,000. 
Any party who is injured by such discrimination may complain 
to the State Attorney General who shall thereupon investigate, and 
if necessary prosecute a suit against the person or corporation so 
accused. And if sufficient evidence is produced in such suit, the 
court may annul the charter of the company, or if it be a foreign 
corporation, may revoke its permit to do business within the 
State. This same principle has been followed in New Jersey, Its 

constitutionality was attacked but has been upheld by the Federal 

Supreme Court in 1012. 1 

leading cities formed in November, 1914, tin Bureau oi Research in Municipal 
Public Utilities, which enables any city thai is a member to obtain public service 
experts at a reasonable cost and to make use of the experience 01 other cities. 
1 Scc Central Lumber Co. 9. So. Dakota, 226* r. S. 157; 191a. 



362 THE NEW AMERICAN GOVERNMENT 

The Seven Sisters. — For many years an active competition be- 
tween a half dozen of the States has existed, in order to secure for 
their treasuries the fees paid for incorporation, by tempting new 
companies to incorporate within the State. This was done by 
liberal charter provisions and easy methods of incorporation. But a 
strong reaction has now set in, and public sentiment has turned 
against the indiscriminate hatching of new companies. Corpora- 
tion lawyers have advocated a closer inspection of the financial 
reliability, the methods of stock promoting and other details of 
new concerns; they have explained repeatedly that the time to 
stop a bad corporation was at its birth, and that the reckless grant, 
by a State, of charters to engage in any and every business, formed a 
standing temptation to fraud, over-promotion and general corpo- 
rate irresponsibility. In this orgy of company promotion New 
Jersey led the way, and it was appropriate that New Jersey should 
start the new movement towards a better corporate system, even 
though the means proposed are far from perfect. Governor Wood- 
row Wilson in his second annual message to the legislature on 
January 14th, 19 13, said: — 

"The corporation laws of the State notoriously stand in need of 
alteration. They are manifestly inconsistent with the policy of the 
Federal Government and with the interests of the people in the all- 
important matter of monopoly, to which the attention of the whole 
nation is now so earnestly directed. The laws of New Jersey as 
they stand, so far from checking monopoly, actually encourage it. 
They explicitly permit every corporation formed in New Jersey, for 
example, to purchase, hold, assign and dispose of as it pleases the 
securities of any and all other corporations of this or any other State 
and to exercise at pleasure the full rights of ownership in them, in- 
cluding the right to vote as stockholders. This is nothing less than 
an explicit license of holding companies. This is the very method 
of forming vast combinations and creating monopoly, against which 
the whole country has set its face; and I am sure, that the people 
of New Jersey do not dissent from the common judgment that our 
law must prevent these things and prevent them very effectually. 

"It is our duty and our present opportunity to amend the statutes 
of the State in this matter not only, but also in such a way as to pro- 
vide some responsible official supervision of the whole process of 
incorporation and provide, in addition, salutary checks upon un- 
warranted and fictitious increases of capital and the issuance of se- 
curities not based upon actual bona fide valuation. The honesty 
and soundness of business alike depend upon such safeguards. No 
legitimate business will be injured or harmfully restricted by them. 
These are matters which affect the honor and good faith of the State. 
We should act upon them at once and with clear purpose." With 
this message he presented the so-called "seven sisters," which were 
seven bills designed to carry out his recommendations, and which 
were subsequently enacted as law. 



THE STATE AND ITS WORK 363 

1. The first Act defined trusts to be combinations or agreements 
to restrict trade or acquire a monopoly, to limit production, to fix 
or increase prices, or any secret, oral or tacit agreement or under- 
standing to restrain competition either by pooling or withholding 
from the market, or selling at a fixed price, or in any other manner. 
A violation of the Act may be punished and this punishment may 
take the form of revoking the charter of the corporation or fine or 
imprisonment of the directors, etc. 

2. The second copies the South Dakota law of 1907, and makes 
it unlawful to sell any commodity, product or public service at a 
lower rate in one section of the State than in another (cost of trans- 
portation being considered), in order to destroy competition or re- 
strain trade. 

3. It is made a misdemeanor to organize or operate any corporation 
with the intent to use it directly or indirectly in order to restrain 
trade, or to acquire a monopoly. 

4. The holding company and the excessive issue of stock to pay 
for new properties are aimed at by the fourth law: 

a. A company may purchase the stock of another corporation 
only when the two are alike in character and the property is to be 
used by the purchasing company in the direct conduct of its own 
proper business. 

b. When one company in this way buys the stock of another, 
the purchasing corporation may not issue a greater amount of new 
stock for the purpose, than the sum which it actually pays for the 
stock of the other corporation. 

c. Whenever stock is issued for property purchased, a majority 
of the directors must sign and file a statement with the Secretary 
of State showing what property has been purchased and the amount 
actually paid therefor. A false statement, if knowingly made, con- 
stitutes a misdemeanor. 

5. Companies are prohibited from buying, selling, or holding, 
the securities of other companies except in payment of debt due from 
such other corporations, or as a temporary investment for surplus 
earnings; or as in the case above mentioned under the fourth Aet, 
companies already in existence at the time of the passage of the law- 
may continue to hold securities which they have purchased. 

6. The permission formerly given by law to companies formed 
! y merger or consolidation to hold and vote the stock oi other com- 
panies is revoked. 

7. Before any merger or consolidation oi certain corporations can 
be made, written approval must be obtained from the Public Utility 
Commission of the State. 

These laws have been too recently passed to demonstrate in prac- 
tice their success or failure, but they seem to rest on two separate 
and distinct foundations: 

First the desire to prevent certain flagrant gross abuses of corporate 
power— such as 



364 THE NEW AMERICAN GOVERNMENT 

Fraud and misrepresentation, 

Stock watering, 

Artificial manipulation of prices to exploit and oppress the public. 
This purpose is especially noticeable in the first Act. In the second 
place, the laws also attempt to force competition by preventing 
holding companies and discouraging consolidations. 

These two separate objects conflict with each other — one is feasible 
and the other is not. The first may best be secured by establishing 
some public authority which will watch over the general schedule 
of prices, as fixed by agreements; the conditions under which mergers 
and consolidations are formed, and permit those which are desirable 
and prevent or correct those which are harmful. 

The second purpose is really a means of carrying out the first. 
It is thought if consolidations can be discouraged and stock-holding 
by other corporations prevented, that legal combines for the purpose 
of exploiting the public, fixing prices, and suppressing competition, 
will be rendered impossible. The strong objection to this second 
purpose is that it may be very good in one case and hurtful in another. 
If a consolidation is advantageous to the public, it should be made. 
If this consolidation can best be made by a holding company, that 
should be allowed, yet the law visits its penalty on both the good 
and the bad alike if they resort to the holding company form, or 
to any one of a number of other practical methods of consolidation. 
What is needed is not a general sweeping condemnation of all com- 
bines, as provided by these Acts, but rather a permissive authority, 
which will separate the good from the bad by administrative proce- 
dure after hearing evidence and making thorough investigations 
and thereupon decide what shall be permitted and what forbidden. 
The control of agreements in each State by a regulative public au- 
thority, is the practical way out of the difficulty, just as the National 
Government should control agreements in national commerce. A 
review of State experience in corporation control shows that the 
next steps should be (a) the establishment of some such permissive 
board or commission which would sanction or disapprove important 
corporate Acts of those companies which are not already under the 
control of the public service authorities or the banking and insur- 
ance commissioners, — that is, the ordinary manufacturing and com- 
mercial corporations; and (b) a relentless, insistent extension of 
the publicity principle. The first would prevent the grosser forms 
of extortion, business piracy and assassination, without in anyway 
preserving the inefficient or wasteful producers. The second would 
protect the investor on a side in which such protection is much 
needed, for outside of farming and real estate the funds of the com- 
munity must be invested in corporation shares. It is no longer pos- 
sible to tolerate concealment and irregularity in corporate affairs, 
under the pretext of encouraging freedom of enterprise; for with 
every new stage of growth in manufacturing and trading, the inter- 
dependence of all interests upon each other increases and becomes 



THE STATE AND ITS WORK 365 

more apparent, so that some State-assured minimum of safety from 
corporate dishonesty is as essential as a State protection against 
the other forms of burglary. In our regulations of business we have 
given too little attention to the small investor, the man or woman 
whose savings are often placed on the advice of some alluring adver- 
tisement or attractive circular which later turns out to be misleading. 
Or if the savings are well invested they may be " shaken down" in 
the ordinary processes of manipulation and reorganization. We 
may never hope to protect the fool from his folly nor the inveterate 
gambler from his vice, but we must offer some degree of safety to 
those who, having earned and saved, wish to take part in the general 
prosperity by placing their share in the general capital. 

There is probably no stronger influence towards genuine conser- 
vatism in America to-day than the profitable and well-protected 
investment of small funds. It behooves the State in a special sense 
to care for the safe-guarding of these and to encourage their growth. 
The administrative obstacles to publicity are serious but not insur- 
mountable; it is even now difficult and at times impossible for the 
State officials to secure proper, accurate statements on financial 
matters from the companies which are already subject to control, 
and it might be still more so from other corporations; there are also 
such differences between the rules of different Commonwealths and 
in their comparative efficiency that no general solution of the prob- 
lem could be worked out by the States. If as seems probable it shall 
become clear that the States are unequal to the task, then the juris- 
diction of the National Government might well be extended to ob- 
tain the desired result, by some such device as that suggested at the 
close of Chapter VIII. 

REFERENCES 

Annual Reports of Stale Banking and Insurance Commissioners. 

W. Z. Ripley: Railroads: Rales and Regulation, 191 2. 

The American Year Book. 

Annals American Academy, May, 1914, "State Regulation of Public Service 
Corporations." 

E. R. Johnson and G. G. Huebner: Railway Rales and Traffic; the Chapters 
on "Rate Regulation." 

Annual Reports and Decisions, of the various State Public Service Commis- 
sions. 

Commission Regulation, published by The Traffic Service Bureau, Market St., 
Chicago. This is a comprehensive and valuable analysis of commission laws, 
prepared for the National Civic Federation by Prof. John H. Gray and others. 
A model bill is published on the basis oi this report, by the National Civic 
Federation, New York City, 

R. II. Whitten: Valuation of Public Service Corporations. 

Regulation of Municipal Utilities, published by D. Appleton & Company. 

BARNES AND MiLNER: Selected Cases. 

Combined Sta to Public Utilities Commission Reports, published by the Public 
Utilities Corporation Reporter, Chicago: or Public UtUiH \oJUi l pub- 

lished by the Lawyers Cooperative Association, Rochester, N. V. 



366 THE NEW AMERICAN GOVERNMENT 

QUESTIONS 

1. Why should a State government regulate business conditions? 

2. Explain the general lines along which regulation has run. 

3. A manufacturing and trading company wishes to secure a charter of 
incorporation — explain the general procedure which it follows in most of the 
States. 

4. Can a corporation transact business not mentioned in its charter? 
Reasons. 

5. Why do so many business concerns incorporate in Delaware and West 
Virginia? 

6. May a State government cancel a charter which has been violated by a 
company? Does it? 

7. Your company has a Delaware charter and wishes to open an office in 
Chicago — does its charter entitle it to do so without further formality? Reasons. 

8. You are discussing the necessity of State regulation of banking, and 
insurance contrasted with State regulation of the farming business. What would 
be your view and why? 

9. How are insurance companies inspected by the State? 

10. Explain fully the defects of this system. Example. 

1 1 . Would you favor or oppose national regulation of insurance companies? 
Why? 

1 2. Explain fully, with constitutional reasons, why the National Government 
does not regulate insurance, and cite authorities on this point. 

13. How can the States lessen the cost of life insurance in private com- 
panies? 

14. Resolved that the State should not sell life insurance. Defend either side. 

15. Is it advisable for the State to attempt to protect the investor from 
fraud? Reasons. 

16. Explain fully the causes of the passage of the Kansas Blue Sky law. 

17. Outline the Act. 

1 8 . What have been its practical results? 

19. Prepare a brief essay on the advantages and disadvantages of a Blue 
Sky law in your State. 

20. Give briefly the origin of the State prohibition of restraints on trade. 
How has the legal principle of free competition been used to destroy competi- 
tion? 

21. Explain the connection between this change and the South Dakota law 
of 1907, forbidding improper competition. Outline the Act, 

22. The Doe Manufacturing Company sells its product in Trenton and 
Camden, New Jersey. The legislature forbids companies selling in more than 
one place within the State to lower prices in one place with the intention of 
destroying competition there. The Doe Company claims that the law deprives 
it of the equal protection of the law and is discriminatory, applying only to 
companies selling in more than one place, and thereby violates the 14th Amend- 
ment. What would the court decide and why? Cite an authority. 

23. Explain the general purposes of the Seven Sister laws in New Jersey, 
giving the chief reasons for their passage. 

24. Outline the Acts briefly. 

25. Resolved that the Seven Sister Acts are partly correct and partly in- 
correct in principle. Defend either side. 

26. Why have corporations received special attention from the regulating 
power of the State and why are they of special importance to the small investor? 

2^. Give your impressions of the value of a State trade commission. 

28. Explain what authority the States have over interstate railways. 

29. Give some examples of laws passed for this purpose. 

30. What is the disadvantage of regulation by State legislatures in this field? 

31. Explain some of the more important causes of popular hostility to the 
railway companies. 

2)2. How does this affect a solution of the regulative question to-day? 



THE STATE AND ITS WORK 367 

33. Why was the railway commission plan adopted and what is the difference 
between it and legislative regulation? 

34. What are the powers of the railway commissions? 

35. What practical benefits have they secured for the public? 

36. Where have they failed and why? 

37. A State lowers the local freight rates on shipments within its borders. 
The railways protest claiming that this affects freight rates on shipments passing 
through from other States in national trade, and that the change can therefore 
only be made by the interstate commerce commission or by Congress. If it 
proves true that national freight rates are affected, is the State act illegal? 
Reasons. Cite an authority. 

38. If in such a case as the above, the national commission attempts to 
change interstate rates in such a way as to affect rates within the State, is its 
action legal? Reasons. Cite an authority. 

39. It is claimed that the National Government should control all local 
freight rates which directly or indirectly affect interstate trade. What is your 
impression of this claim? 

40. It is argued against this claim that the commission is already over- 
burdened. Explain and discuss any practical proposal for relief. 

41. What is a public service commission and why is it so called? What is the 
difference between a public service and a railway commission? 

42. What are its advantages over legislative regulations? 

43. How would you show that the commission plan met present needs? 

44. Outline the organization of the Maryland commission? 

45. Explain the powers of the commission and give some examples showing 
the nature of its work and decisions. 

46. Explain the chief features of the Wisconsin commission and its powers. 

47. Outline the distinctive features of the Pennsylvania law. 

48. Explain how appeals from the decisions of a commission are usually 
regulated by the State laws. 

49. How is excessive delay in appeals avoided? 

50. Summarize the principal methods of regulating security issues with 
the advantages of each. 

51. An electric light company has been establishes in a small city. There 
are occasional complaints as to rates and service. Some of the citizens talk of 
the need of competition. What would be your attitude and why? 

52. Taking advantage of some discontent with the existing company a 
new company is formed and secures the consent of the State authorities to erect 
poles and wires and offer light at a lower charge, but the law requires the ap- 
proval of the State public service commission before the new company can 
operate. What would the commission probably decide and why? Cite a prec- 
edent. 

53. Do the commissions as a rule favor reduction of charges or improved 
service and why? 

54. John Doc owns some stock in a water supply company. It is proposed 
to establish a State public utilities commission. Would Doe's financial interest 
be helped or injured by the establishment of such a body? Reasons. 

55. Why do the State commissions appraise or value the property o\ public 
service companies? 

56. Cite the clauses in the Slate and National Constitutions which affect this 
problem. 

57. In valuing a plant will a public service commission include the cost of 
incorporating the company? Why? 

58. What is meant by going concern value? Is it included? 

5c). A company has a monopoly of tin- slaughtering business in a small city, 
it has paid nothing for this righl or franchise which, nevertheless, is highly 
valuable. Must the value be included, in appraising the total value of the com- 
pany's property? Reasons. Cite a precedent. 

60, Explain your impressions of the most successful aspects of commission 
regulation. 



3 68 



THE NEW AMERICAN GOVERNMENT 



6 1 . Of the unsatisfactory sides of commission work. 

62. What are the causes of delay in carrying out the rulings of the commis- 
sions? 

63. How do the commissions' powers affect the purchase by cities of their 
local public service plants? 

64. How do the commissions generally affect the rights of the cities to 
settle their own public utility problems as they please? 

65. The State commission allows the gas company in Bytown Center to 
furnish gas to large consumers at 70c, to small consumers at 85c. At the end of 
a year it lowers the small consumer's rate to 80c. There is a gathering storm 
of public indignation and demands that the small consumer be given the 70c 
rate. Explain the arguments on both sides and give your views as to the correct 
course to pursue, with reasons. 

66. Have you a public service commission in your State? If so, what are its 
powers? 

67. Prepare an essay on the advantages and disadvantages of public service 
regulation by commissions. 

68. Write up a summary history of any complaint made to the public service 
commission in your State and of the action taken upon it. 



CHAPTER XIX 

THE STATE— Continued 
LABOR 

Although "labor questions," as we call them, have existed from 
prehistoric times, the exact form which they have now taken is 
new and brings with it a new view of the State's authority and 
duties. The needs which the State is striving to satisfy are: 

1. Increased efficiency of the worker. 1 

2. Factory laws, including also regulation of the hours of labor. 

3. Compensation for accidents to workmen. 

4. The settlement of disputes between employer and labor. 

5. The wage rate. 

6. Improvement of the worker's status in legal disputes. 

2. Factory Laws. — The intervention of the State in factory and 
workshop has done more than any other government measure, 
except education, to civilize modern industry. However critically 
we may regard government interference in other fields, in this 
department it has undeniably wrought a great improvement. 
In the smaller workshops and tenement houses there is still need 
for thorough regulation. During his waking hours the worker's 
health and safety are determined by the conditions of the factory 
or workroom; his welfare demands healthful and reasonably com- 
fortable surroundings. If we followed him through a day's labor 
we should find that he is constantly confronted by a number of 
dangers to both safety and health, under conditions which he is 
often unable to avoid, but which may be improved by State action. 
The prevention of these dangers is a public service which benefits 
directly one-quarter of our people. It includes the following sub- 
jects: 

a. Dangerous machinery; 

b. Ventilation and sanitation; 

c. Decency and morality; 

d. Fire protection; 

e. Hours of labor; 

f. Sweatshops. 

Each commonwealth has established a special department of 
factory inspection with a chief inspector and a force oi deputies. 
each deputy being responsible for (he conditions in his district. 

1 This improvement in the worker's effectiveness IS second to none in practical 
importance; the means by which the State can assist are shown under Voca- 
tional Education in a subsequent Chapter. 

369 



370 THE NEW AMERICAN GOVERNMENT 

The number of deputy inspectors is entirely inadequate, the largest 
being 125 in New York. 

a. Dangerous Machinery. — All machines, elevators, engines, 
boilers, belting and other dangerous mechanism must be surrounded 
with proper safeguards to prevent injury to employes and others. 
This clause has been found difficult to administer because of the 
slowness to adopt modern safety devices, also because of the un- 
willingness of the workers to keep the safeguards and appliances 
in the proper position. The latter obstacle has been particularly 
noticed in looms and factory machines generally, where any delay 
in operation is occasioned by the necessity for keeping the ap- 
pliances properly placed. It is frequently reported that in spite 
of the positive instructions of superintendents and inspectors alike, 
the employes have removed safeguards from machinery. 1 The 
explosion of steam boilers is guarded against by a careful system 
of boiler inspection and the requirement that regular tests shall 
be made. These latter are often conducted by the boiler insurance 
companies. 

b. Ventilation. — In many textile industries the nature of the 
fabrics produced and the character of the work to be done require 
a heated, damp air throughout the entire day, while in others, 
such as lead and paint mills, the dust and smoke continually arising 
from the necessary processes of manufacture are highly injurious. 
In still others the crowding together of large numbers of people in 
poorly heated rooms, makes ventilation impossible in the winter 
time, while in summer the conditions are worse. This is not true 
of the larger and newer establishments, in which high ceilings, 
abundant light, and modern air-supplies are provided, but in the 
smaller and older buildings the lack of light and ventilation is 
common, and necessarily affects the health of the inmates. Most 
of the States now prescribe a certain number of cubic feet of space, 
from 250 to 1,000 feet, for each person employed, allowing the 
deputy inspector to use his judgment in regard to the suitability 
of the means of changing the air. It is doubtful if this expedient 
will prove permanently satisfactory, because of the large number of 
shops and factories situated in old buildings with inadequate 
systems of ventilation. 2 

c. Morality. — The tone of decency, modesty and morality is 
lowered by any failure to provide reasonable and separate wash- 
room and toilet facilities for men and women employes. Factory 
life, at its best, is apt to be clean, wholesome and moral in influence, 

1 A remarkable improvement in the large factories is being wrought by such 
associations of employers as the National Metal Trades Association; this body 
sends to its members a full description of the latest ideas and inventions for 
safety purposes. Undoubtedly a very great proportion of accidents could be 
prevented by a systematic campaign of education among both workers and 
employers, both of which classes need much enlightenment on the subject. 

2 See the description of the Ohio, Wisconsin and New York labor depart- 
ments, below. 



THE STATE 37 1 

but in the large cities where floor space is expensive and unsuitable 
buildings are utilized, the provisions for personal comfort, clean- 
liness and decency are often such as cannot be tolerated with safety, 
and frequent complaints of these conditions are made. All of the 
States now require separate adequate provision to be made but the 
laws are usually enforced with laxity. 

d. Fire Protection. — The maintenance of fire escapes in all facto- 
ries, mills and tenement houses is compulsory, but practical tests 
of the capacity of the means of escape are not usually held except 
on the initiative of the employer. A vast majority of fire escapes 
are entirely insufficient to accommodate the employes in time of a 
sudden rush. Fire drills are not, but should be required by law. 
They are the only means of preventing loss of life in large establish- 
ments. 

e. Child Labor. — The evils of child labor are sought to be amel- 
iorated by prohibiting the employment of persons under a certain 
minimum age, varying in different States. In Massachusetts, 
Illinois, New York and Pennsylvania, 14 has been fixed as the age 
limit. It is also provided that between this age and 16 years, 
children who are employed in factories must be able to read and 
write English and to have attended school according to law. No 
children under 18 are allowed to work more than a certain number 
of hours per week nor more than a certain time in any one day. 
This limit also varies somewhat, a common provision being 54 
hours per week and ten hours in any one day. A list of the names, 
ages and residences of all children employed in the factory must 
be furnished by the employer to the deputy inspector, and posted 
at the factory. The first two of these provisions, restricting labor 
under a certain age, are evaded in most of the densely populated 
manufacturing districts. This is not the fault of the employers 
but is rather due to the eagerness of parents to secure the small 
amount of wages which may be earned by the child. In many 
instances, particularly in New York and Pennsylvania, it has been 
found that parents are sometimes willing to commit perjury in 
order that their children should be so employed under the Legal 
age and it is not safe to depend upon parents for active co-operation 
in the execution of the law. In Massachusetts an effective plan 
to prevent evasion has been devised which is now adopted in Penn- 
sylvania and other States. This requires that the age certificate 
shall be issued by the school authority of the proper district. The 
school superintendent on his part refuses to issue the certificate 
unless the school records show the child to be fourteen or over or 
unless a properly attested birth certificate is produced. 

The hours of labor for women are usually fixed at the same maxi- 
mum as those for children. The number oi hours is being gradually 

lowered in many States; it is impossible to li\ a reasonable limit lot 
all industries, sueh limit depending on the nature oi 'be employ- 
ment, All forms of piece-work in factories are prone v occasion 



372 THE NEW AMERICAN GOVERNMENT 

a nervous strain which is accompanied by serious effects if main- 
tained during a ten-hour day. On the other hand, ten hours in a 
department store would not involve more than eight hours of 
work in other lines, except during the period of holiday trade. A 
careful classification of industries is urgently needed as a basis 
for the regulation of hours. 

The national conference of commissioners on uniform State laws, 
has provided a model child labor bill to be introduced in the legis- 
latures. The chief provisions of this measure are: the prohibition 
of all factory labor for children under 14; the fixing of 16 years of 
age for certain dangerous occupations, especially those connected 
with dangerous machinery; the requirement of employer's certif- 
icates and records of school attendance and of certain minimum 
educational standards; children under 18 years of age are to be 
forbidden in certain other more dangerous occupations, and all 
minors are excluded from employment in connection with saloons or 
establishments where intoxicating liquors are sold; the eight-hour 
day is prescribed for boys under 16 and girls under 18; newspapers 
may not be sold in large cities by boys under 12, nor girls under 16. 
The advantage of such a uniform measure to all concerned is that 
it would fall with equal weight upon all manufacturers who are 
competing in the same field while lack of uniformity is a heavy 
handicap upon those who are located in the States having the 
highest standards. Competition in manufacturing should not be 
based on such a difference in the laxity of the law. 

Hours of Work for Men. — Next in importance to the working 
hours of women and children is the limitation of time for men. A 
noteworthy growth of legislation along this line may be traced. At 
the outset all restrictions upon the conditions of labor contracts 
were resisted both by employers and workmen, as involving a State 
interference with the freedom of contract of the individual and as 
being therefore unconstitutional. For example, the law requiring 
the payment of wages to be made at least once in every two weeks 
was declared unconstitutional in Pennsylvania, as were also the 
New York, Pennsylvania and California laws providing one day of 
rest weekly in bakeshop work. While these measures were intended 
to promote the welfare of the laborer, they were held by the courts 
to be an unwarrantable interference with his and the employer's 
right to make a contract, and therefore contrary to the 14th Amend- 
ment as a violation of liberty and property. The legislation re- 
stricting the work of women and children, however, is based upon 
the protection of health. It has been sustained on this ground in all 
the States where a case has arisen, the courts holding that for the 
necessary protection of health and safety the freedom of contract 
may be limited without violating the purpose and intent of the 
Amendment. But the protection of health is a matter which may 
be extended even to adult men in mines and dangerous industries, 
and recent decisions have established the point that an eight-hour 



THE STATE 373 

law governing miners is constitutional and valid so far as it is based 
on the protection of health. 1 The same doctrine has been main- 
tained by at least one State court in upholding a limitation of hours 
of labor in a bakeshop on grounds of health protection. As a rule, 
however, the working hours of men over 21 years of age may only be 
regulated in dangerous industries. 

f. Sweatshop Laws. — Last but by no means least in the list of 
dangers against which the law has been directed, is the "sweat- 
shop." A manufacturing, repairing or renovating business carried 
I on in a dwelling or tenement is usually called by this name. Cloth- 
ing manufacture is the chief sweating industry; the materials are 
taken home, usually from a custom-tailor's establishment, and are 
finished by all the members of the family and sometimes several 
other persons from the outside, all working, perhaps, in a single 
small tenement room. The crowded condition of the workroom, 
the latter usually being also the living room of the family, makes 
cleanliness difficult. The garments in course of manufacture are 
piled promiscuously about the workroom and bedrooms. In case of 
contagious disease the utmost care is used to prevent discovery, for 
discovery means a raid by the factory inspector. The completed 
garments being returned to the tailor, often spread the disease. By 
carefully tracing the sources of contagion it has been found that a 
single lot of clothing made by one family has caused over a dozen 
other cases of smallpox. 

While the danger to the public health is the most apparent of all 
the disadvantages of the sweatshop, it is not the most serious. 
The gravest evil is wrought upon the workers themselves. The 
workshop atmosphere has conquered that of the home; poor ventila- 
tion, long hours, child labor, overwork and low wages have become 
the common incidents of the sweatshop. Since the finishing of 
clothing is all paid by the piece, the earning capacity of the family 
depends upon the quantity of work turned out, which in turn 
depends upon the number of members, their speed and the length 
of the working day. There are no restrictions on work in the 
home; the whole process resolves itself into a simple test of human 
endurance, in which every man, woman and child is driven to the 
utmost by the hope of earning a little more. The head of the family 
often is tempted to secure more work by under-bidding other 
families, and the price per piece is lowered, a process that has taken 
place slowly but steadily in all the large cities in spite oi union. 
strike and consumers' league. By successive stages of competition 
the home workers have lengthened their hours to an unheard-of 
extent, increased enormously their output and kept wages at the 
minimum point of subsistence! The reason for this suicidal policy 

lies in the extensive immigration oi certain races and in the transfer 

of the industry to the home oi the laborer. Any body of men and 

women working in a factory must necessarily feel that their interests 

1 lloldeu v. Hardy, 109 U. S. joo; 1S9S. 



374 THE NEW AMERICAN GOVERNMENT 

are common, so that a lowering of wages or increase in hours is 
felt and resented by them as a body. But when the laborer works at 
home the question which confronts him is how can his immediate 
family earn more? The answer is natural — by increasing the work- 
ing hours and by bidding for work. Against this apparent, momen- 
tary advantage the union spends its efforts in vain. The situation is 
rendered more difficult by the ignorance of the workers, most of 
them being unskilled immigrants. 

In attempting to cope with sweatshop conditions the States have 
done little or nothing to improve the condition of the workers but 
have insisted only on clean rooms and that only members of the 
family shall work in the family quarters. All persons who secure 
work from employers to be done at home in a tenement house must 
have a permit issued by the factory inspector or the board of health. 
No work may be given out by the employer unless the permit-card 
is shown to him. This permit is only granted after an official in- 
spection of the premises to see that they are properly cleaned, that 
the bedrooms are not used for manufacturing purposes, that the 
proper amount of cubic space of air per person is allowed, and that 
no contagious diseases are prevalent. The granting of the permit is 
made contingent upon the proper compliance with these conditions; 
the permit may also be revoked at a moment's notice, should the law 
be violated. 

The law applies in most States to the manufacture of clothing, 
trimmings, tobacco products and to renovating establishments, and 
in some States also to bakeshops. Much still remains to be done. 
It will be seen that one of the gravest evils of the sweatshop, 
namely the excessive exploitation of child labor in the family, has 
not been prevented. This is a defect in the law itself and in the 
standards of life of the foreign immigrants. Furthermore, the 
administrative difficulties of the case are serious. In the first place 
the number of persons engaged in sweatshop industries is very 
large. In order to keep strict account of these, the inspector would 
be obliged to make visits to each establishment at least quarterly 
during the year, but this is impossible in most cities. In the second 
place the frequent change of location renders it unusually difficult 
to trace violators of the law. According to the legislation of all the 
regulating States on this point, a permit is granted separately for 
each location, but it is impossible to ascertain without an actual 
visit whether a person presenting a card at a tailor's establishment 
really lives at the residence named on the card or not, and the 
tailors certainly cannot be required to make inquiry. 

Again the racial, religious and social ties of the persons engaged 
in sweatshop work tend to promote collusion to evade the law. 
News of the inspector's arrival in the neighborhood is usually spread 
with rapidity and cases of contagious disease are secreted, or if this 
is impossible, the work itself is hidden by the neighbors. It is the 
experience of deputy inspectors that the more ignorant classes ai*t 



THE STATE 375 

prone to evade the law whenever possible. Finally, it is a common 
practice to borrow and lend permits when applying to tailors for 
work. Under ordinary circumstances the clothing firms giving 
out work cannot detect the falsehood, while the deputy inspector 
may not discover the absence of a proper card for six months or 
more. 

Nearly all these administrative obstacles might be remedied by 
an increase of the personnel in the factory inspection department. 
That the State will in course of time be obliged to go even further 
to insure reasonable healthful and comfortable conditions of home 
labor, can hardly be doubted. 

The future development of factory and shop inspection must 
consist less in additional law making than in securing a reasonable 
execution of existing laws. There is no State in which a proper 
standard of administration has yet been reached. Individual 
employers of the better class frequently improve conditions on 
their own initiative, and would probably do so without a compul- 
sory law, but those who conform to a lower standard require super- 
vision and compulsion by some public authority. The need of a 
strong and enlightened public opinion is as great in this field as 
in any other department of administration. The formation and 
guidance of this public sentiment must depend primarily upon the 
employers' association and the labor union. While the unions have 
already done much in this direction, a systematic and methodical 
plan of aiding the factory inspectors in the execution of the law is 
needed. For the protection of employers much greater care should 
also be exercised by the Governor in selecting inspectors; a position 
such as this, on which the safety and even the lives of the workers 
depend and which so closely touches the employer's interests, should 
not be made the plaything of partisan politics. 

In Wisconsin a new type of factory act has been tried with success ; 
this requires that shops, factories, etc., shall be kept "safe " for both 
employes and frequenters, but it leaves the exact interpretation of 
"safe" to an industrial commission which regulates details and 
administers the law. The deputy inspectors are instructed by this 
commission how to enforce the law and a series of administrative 
regulations are drawn up and published by the commission. Em- 
ployers and others may appeal, from the aits o\ any deputy, to the 
commission and from its decision to the courts. The advantages oi 
this plan are greater reasonableness and elasticity of the rules 
governing safety. Other States are following the Wisconsin 
precedent. The New York law of 1913 establishes an "industrial 
board " consisting of the state commissioner o\ labor and four other 
members, which makes investigations of all matters affecting the 
enforcement of the State labor law and issues rules and regulations 
to execute the law. That is, the New York Act applies the excellent 
Wisconsin principle not only to safety, but to all important ques- 
tions affecting the labor law and enables the industrial board by its 



376 THE NEW AMERICAN GOVERNMENT 

regulations to keep that law thoroughly up to date and fit it to the 
special needs of each industry. The various rules issued by the 
board must be immediately published and distributed, in a " labor 
bulletin"; they form "the industrial code" and have the binding 
force of law. The practical benefit of this administrative type of 
regulation, as compared with regulation by the legislature, is clear 
the moment that we glance at the work of the board in such a 
subject as ventilation. This is one of the serious difficulties of 
factory regulation, especially in the older and smaller buildings; 
in some industries it causes grave and even fatal illness of the 
workers. Most of the States have tried to meet the problem by a 
simple provision in the law that there must be 250 cubic feet of air 
space for each person, and that if the process of manufacture be a 
dusty one, air suction devices or fans must draw off the dust. This 
is an inflexible and inadequate solution of the question. The com- 
mission or administrative plan is much stronger and is well illus- 
trated by paragraph 3 of Section 86 of the New York Act, adopted 
in 1913, — "The industrial board shall have power to make rules and 
regulations for and fix standards of ventilation, temperature and 
humidity in factories and may prescribe the special means, if any, 
required for removing impurities or for reducing excessive heat, and 
the machinery, apparatus or appliances to be used for any of said 
purposes, and the construction, equipment, maintenance and 
operation thereof, in order to effectuate the purposes of this sec- 
tion." This allows free play to the administrative officers, respon- 
sible for the execution of the law, to adopt any or all proper means 
necessary for its fulfillment. It has also been followed in the new 
Pennsylvania Act of 19 13. 

Another example of the strong authorities which are now being 
created to administer the State labor laws, is the Ohio Industrial 
Commission created by the Act of 19 13. This body, which has 
three members, has been given all the combined powers of the six 
following departments: the Liability Board, which previously ad- 
ministered the workmen's compensation fund; the factory inspector; 
the examiners of stationary engineers; boiler inspection; labor statis- 
tics; arbitration and conciliation. The new commission will have 
control over all factories, shops, stores, telegraph and telephone of- 
fices, printing establishments, laundries, bakeries, hotels, depots, 
apartment houses, warehouses, churches, and the various infirmaries, 
hospitals, asylums and sweatshops. The Act requires these to be 
"safe" for both employes and frequenters. It marks an important 
innovation in labor law in that it authorizes the Commission to 
regulate the hours of labor of employes with regard to their health 
and welfare to such extent as the nature of the employment will 
reasonably permit, not inconsistent with law. These important 
provisions are a noteworthy step towards a satisfactory solution of 
the hours question. The fixing of hours like the settlement of any 
other industrial problem which involves constant and careful in- 



THE STATE 377 

vestigation, should be left to an administrative body and not at- 
tempted by the legislature. 

Another admirable feature of the Ohio Act is that it provides for 
hearings by the commission on any of its rulings, such hearings to 
extend to the reasonableness of the orders. An appeal may be taken 
from the commission only to the Supreme Court of the State. This 
aims to prevent unreasonable delays and suspension of the commis- 
sion's orders by the lower Courts. The commission is also authorized 
to make suitable rules and regulations for safety and health of em- 
ployes in the various establishments and to maintain a museum of 
safety and hygiene in order that employers may be aided and kept 
in touch with the latest devices in this field. 

3. Workmen's Compensation for Accidents. — When injured in 
the pursuit of his duties, shall a workman obtain compensation, 
and if so, how and from whom? In spite of its seeming simplicity 
this problem has never been solved in this country. Its import 
to the community is clear from the fact that many thousands are 
completely, and hundreds of thousands partially disabled every year 
by industrial accidents. 1 We must remember that most working 
families are living on the narrowest margin, and that even a tem- 
porary stop in earnings means immediate deprivation while a perma- 
nent or complete loss of earning power means acute poverty and des- 
titution. 

Three different answers to the question have been offered, — the 
old common-law suit for damages against the employer, in which 
the injured laborer was supposed to secure a verdict proportioned 
to the seriousness of the injury and the employer's neglect or fault 
in causing it; the modern Workmen's Compensation Act, which 
requires the employer to give the injured man a small or moderate 
sum, without a lawsuit and regardless of whose neglect or fault 
caused the accident; the system of State conducted insurance which 
collects from employers a certain tax or assessment based upon 
the danger of their industry and the size of their pay roll, and dis- 
tributes this fund to the victims of accidents. In the first plan as set 
forth in the older laws and court decisions, the injured workman is 
unable to secure legal compensation from his employer without. 
entering into extended litigation. The two have been pitted against 
each other in the courts iu a legal battle which could not fail to em- 
bitter their relations and to create a dangerous feeling oi class antag- 
onism. In practice the injured man must prove: — 

a. That the employer was negligent, 

b. That this negligence caused the accident. 

Naturally if he failed in either oi these he lost his suit against 
the employer and thereby his hope oi relief, The technicalities of 

the law provided further that the workman lost if the accident was 

caused by his own negligence or by the carelessness oi a fellow em- 

1 it is estimated that ovei 5,000 persona are killed and many more injured 
seriously every year in American industry . 



378 THE NEW AMERICAN GOVERNMENT 

ploye, or if the accident was of such a 'nature as to be part of the 
"ordinary risk" of the business. These last three doctrines of "con- 
tributory negligence," "fellow-servant rule," and "assumption of 
ordinary risk," effectually prevented the vast majority of injured 
men from securing any award of damages in case of accident. 

A serious weakness of this first system is its delay, expense, uncer- 
tainty and insufficiency. Any relief which is granted to a workman 
should be immediately extended. Otherwise the injured workman 
is confronted by physical incapacity, a great increase in his expenses 
for the effects of the accident and the simultaneous withdrawal of 
his wages. All of these coming together are usually sufficient to 
shipwreck the family finances of any but the most careful and far- 
seeing man on a higher standard of wages. This first plan there- 
fore falls short in that it defers all relief until after a long jury trial 
with possible appeals to higher courts, retrials, etc. The case of 
Kane v. The Erie Railroad, 142 Fed. Rep. 682; 1906, was seven 
times before the Federal tribunals, four in the Circuit Court, and 
three in the Circuit Court of Appeals, but the family of the plaintiff 
were finally refused redress for the injury and death incurred by him 
while in the pursuance of his duty. The expense of the present sys- 
tem is due to the necessary employment of legal counsel and the 
court costs. In many accident cases counsel are paid by a contingent 
fee ranging from one-third to one-half of the amount which they 
may recover for the injured person. From the injured party's share 
is also deducted some necessary court expense. Where the case is 
appealed by the employer or where lengthy litigation follows, the 
cost is prohibitive to any injured workman. In practice most em- 
ployers take out a policy of liability insurance in some large insur- 
ance company. This policy protects them against loss in case any 
court awards a verdict against the employer in an accident case. 
When a lawsuit arises the employer hands his case over to the insur- 
ance company which defends it, using its own counsel. One of the 
important results of this system is that the insurance company will 
often take advantage of every technicality of the law to avoid having 
to pay the accident damages which the court may award. These 
technical delays hold up the final decision of the suit and the work- 
man soon finds that it would be cheaper for him to settle the case 
outside of court at a much lower figure than that to which he is 
entitled under the law. He does this to avoid appeals to higher 
courts and in order to secure a definite sum of money immediately, 
even though it be a small amount. 

Equally harmful and injurious is the uncertainty of the law. As 
the law now stands the possibility of recovering damages is most 
uncertain, — technical questions either of fact, of procedure or of 
interpretation appeal with such varying degrees of force to different 
judges and juries, so that one claimant may succeed in winning sym- 
pathy or in concentrating attention upon the negligence of the em- 
ployer, while another may fail in so doing and thereby lose his ver- 



THE STATE 379 

diet. As a result the same law is differently interpreted in different 
States and at different times in the same State. No system of relief 
for industrial accidents is adequate so long as serious elements of 
uncertainty enter into it. No injured workman nor his family can 
rely with confidence upon receiving, in case of such accidents, any 
part of the award of damages which he has a right to expect. 

The insufficiency of the older " liability" system in our State 
governments is now generally recognized. The law covers only 
those injuries in which it can be proved that the cause was the negli- 
gence of the employer. The best conservative estimates show that 
legal relief is awarded in less than 10% of the serious accidents, and 
from this small proportion must be deducted those commissions, 
fees and other expenses which attend all litigation. The only reason 
for any system of employer's payments is to relieve the damages 
and distress caused by accident; judged from the standpoint of its 
purpose the "liability" plan is more than 90% a failure. 1 

Workmen's Compensation. — These considerations have led large 
bodies of citizens both employers 2 and labor unionists to favor a 
complete change. 

It is now proposed that when a serious accident occurs, we should 
no longer delay all action while a long, uncertain, technical and 
highly expensive court trial is held, to measure exactly to what 
extent the employer and the workman respectively were at fault, 
but that some relief payment should be immediately granted to the 
victim or his family. This is the principle of the "Compensation 
Acts" of the National Government and some of the States. These 
provide that whenever a workman is injured in the course of his 
duties the employer shall pay him a certain sum definitely provided 
by the law and fixed according to the extent of the injury. No law- 
suit need be held but a committee on compensation ascertains the 
extent of the injury and makes the award. The employer does not 
prove that the accident was caused by the workman's own negligence, 
or by a fellow-workman's carelessness, or by the ordinary natural 
risk of the business, — because none of these defences affect the ease. 
On the other hand the workman, by accepting the law, agrees to 
limit the amount of damages demanded, to the exact sum fixed by 
the Act. These laws have reduced litigation to a minimum, have 
prevented the inordinate delays oi the old system, and have increased 
the total sums actually received by injured persons. 

The two forms of Compensation Act are the compulsory and the 
elective. The U. S. Bill of [912 was compulsory, providing that 
railways and common carriers engaged in interstate commerce 

l To remedy this condition some large corporations have established relief 
funds to which they make contributions and the employe's also contribute their 
diu-s. The vast majority of workmen, however, are not reached by these plans, 
and it has become necessary for the National and State governments to revise 
the law of employers' liability. 

'The National Metal Trades Association has prepared an admirable in- 
vestigation ami report ow this subject from the employer's \ iewpoint, 



■■ 



380 THE NEW AMERICAN GOVERNMENT 

pay their injured employes certain fixed amounts, regardless of whose 
negligence caused the accident. The compulsory type would be 
unconstitutional in most of the States. The New York law of 1909 
provided that employers engaged in business within that State must 
pay certain sums to their injured employes in case of industrial 
accidents, and irrespective of whose fault caused the accident. The 
State Court of Appeals declared this law invalid under the State 
constitution on the ground that when the legislature made the em- 
ployer responsible for accidents regardless of his carefulness or negli- 
gence, it took from him his property in violation of the State consti- 
tution. 1 Since this interpretation of liberty and property over- 

1 In this case, Ives v. South Buffalo Railway Co., 201 N. Y. 271, 94 N. E. 
431; 1913, the Court said: "One of the inalienable rights of every citizen is to 
hold and enjoy his property until it is taken from him by due process of law. 
When our constitutions were adopted it was the law of the land that no man who 
was without fault or negligence could be held liable in damages for injuries sus- 
tained by another. That is still the law, except as to the employers enumerated 
in the new statute, and as to them it provides that they shall be liable to their 
employes for personal injury by accident to any workman arising out of and 
in the course of the employment which is caused in whole or in part, or is con- 
tributed to, by a necessary risk or danger of the employment or one inherent in 
the nature thereof, except that there shall be no liability in any case where the 
injury is caused in whole or in part by the serious and willful misconduct of the 
injured workman. It is conceded that this is a liability unknown to the common 
law and we think it plainly constitutes a deprivation of liberty and property 
under the Federal and State constitutions, unless its imposition can be justified 
under the police power which will be discussed under a separate head. In arriv- 
ing at this conclusion we do not overlook the cogent economic and sociological 
arguments which are urged in support of the statute. There can be no doubt 
as to the theory of this law. It is based upon the proposition that the inherent 
risks of an employment should in justice be placed upon the shoulders of the 
employer, who can protect himself against loss by insurance and by such an 
addition to the price of his wares as to cast the burden ultimately upon the con- 
sumer; that indemnity to an injured employe should be as much a charge upon 
the business as the cost of replacing or repairing disabled or defective machinery, 
appliances or tools; that, under our present system, the loss falls immediately 
upon the employe who is almost invariably unable to bear it, and ultimately 
upon the community which is taxed for the support of the indigent; and that 
our present system is uncertain, unscientific and wasteful, and fosters a spirit of 
antagonism between employer and employe which it is to the interests of the 
State to remove. We have already admitted the strength of this appeal to a 
recognized and widely prevalent sentiment, but we think it is an appeal which 
must be made to the people and not to the courts. The right of property rests 
not upon philosophical or scientific speculations nor upon the commendable 
impulses of benevolence or charity, nor yet upon the dictates of natural justice. 
The right has its foundation in the fundamental law. That can be changed by 
the people, but not by legislatures. In a government like ours theories of public 
good or necessity are often so plausible or sound as to command popular ap- 
proval; but courts are not permitted to forget that the law is the only chart by 
which the ship of state is to be guided. Law as used in this sense means the basic 
law and not the very act of legislation which deprives the citizen of his rights, 
privileges or property. Any other view would lead to the absurdity that the 
constitutions protect only those rights which the legislatures do not take away. 
If such economic and sociologic arguments as are here advanced in support of 
this statute can be allowed to subvert the fundamental idea of property, then 
there is no private right entirely safe, because there is no limitation upon the 



I 



THE STATE 38 1 

turned the whole Compensation Act, attention was directed to the 
amendment of the State constitution. In 19 13 a clause was in- 
serted in that document expressly permitting a compulsory law 
and a system of State insurance. 1 

Pursuant to this change, the New York legislature passed, 
March 16, 19 14, a new workmen's compensation law classifying 
industries as hazardous and otherwise, and enacting a compulsory 
workmen's compensation for all hazardous industries. A State 
industrial commission decides claims arising under the Act and 
a State insurance fund is created by a tax on employers in haz- 
ardous trades. From this fund the sums awarded by the com- 
mission to injured workmen, are paid. The amounts fixed by 
law for each injury, under workmen's compensation, are much 
lower than would be awarded in a successful suit under the old 
employers' liability law, but the certainty of obtaining a moderate 
definite sum of compensation is a much greater benefit to the in- 
jured man than the remote possibility of larger damages. In order 
to prevent an injured workman from losing his compensation, through 
the bankruptcy of his employer, the newer State laws require the 
employer to take out insurance covering his liability for accidents. 
The best State system is a compulsory workmen's compensation 
without elective features. As to a State insurance fund, the em- 
ployers as a rule oppose workmen's compensation laws on account 
of the greater expense of insurance; but, once the law becomes in- 
evitable they prefer to have State insurance in order to reduce the 
cost. 

The Ohio Act. — Following the adoption of the new State consti- 
tution and a temporary change in the party control of the State in 
191 2-13, Ohio enacted a series of advanced laws, notable among 
which was the Workmen's Compensation Act. This measure pro- 
absolute discretion of legislatures, and the guarantees of the constitution are a 
mere waste of words." 

1 The terms of this clause which are broad and sweeping are as follows: 

Section 19. "Nothing contained in this constitution shall be construed to 
limit the power of the legislature to enact laws for the protection of the lives, 
health, or safety of employes; or for the payment, cither by employers, or by 
cmployds or otherwise, either directly or through a State or other system of 
insurance or otherwise, of compensation for injuries to employes or for death 
of employes resulting from such injuries, without regard to fault as a cause 
thereof, except where the injury is occasioned by the willful intention of the 
injured employe to bring about the injury or death of himself or of another, or 
where the injury results solely from the intoxication of the injured employe* 
while on duty; or for the adjustment, determination and settlement, with or 
without trial by jury, of issues which may arise under such legislation; or to 
provide that the right of such compensation, and the remedy therefor shall be 
exclusive of all other rights and remedies for injuries to employes or for death 
resulting from such injuries; or to provide that the amount oi such compensation 

for death shall not exceed a tixed or determinable sum That all moneys 

paid by an employer to his employes or their legal representatives, by reason 
of the enactment of any of the laws herein authorised, shall be held to be a 
proper charge in the cost of operating the business o| the employer." 



382 THE NEW AMERICAN GOVERNMENT 

vides a State compensation fund which is secured from a tax upon 
employers, each employer and each industry being rated according 
to the danger of the occupation and of the particular factory or 
establishment. The rates are changed every six months if necessary. 
If an injured workman decides to sue his employer for damages, 
he may not afterward avail himself of the State compensation award, 
and the ordinary difficulties of litigation are such as to discourage 
suits. The Act applies to all occupations and the rates of compensa- 
tion are fully one-third higher than in other States. It is a curious 
fact that both the Labor Unions and the Manufacturers Association 
of the State favored the bill before the legislature. It was vigor- 
ously opposed by representatives of the insurance companies, be- 
cause it practically wipes out the employers' liability insurance busi- 
ness by turning this matter over to the State. The law provides 
for a small insurance fund of $100,000, which is secured by setting 
aside 10% of the money received, until the figure named has been 
reached; after that, only 5% is taken for the fund as long as the 
State Industrial Commission deems it necessary to add to the fund. 
The purpose is to provide a reserve sufficiently large to take care 
of any unusual number of accidents. 

The Ohio law is also unique in that it extends to public service 
companies and the various subdivisions of the State government 
such as counties, cities, school districts, etc. 

Although the Federal law of 191 2 contains the same principle 
as the former unconstitutional New York Act, the Federal Act 
would probably be upheld because the National courts are far 
more liberal in their construction of the "property" and "due 
process" clauses of the National Constitution than the New York 
court has been in interpreting the similar clause of its own State 
constitution. The Federal courts would be apt to hold that a 
compulsory act was a proper and legitimate exercise of the Federal 
control over commerce, or of the State control over local business. 
The Wisconsin courts have also upheld a compulsory law in that 
State as a constitutional exercise of the Police Power. 

The Elective Plan of Compensation. — In order to avoid these 
State constitutional difficulties some of the States led by New 
Jersey have now passed elective laws, which give the employer the 
right to choose whether he will adopt the new compensation prin- 
ciple or retain the old employer's liability plan. If he rejects the 
compensation plan and decides to defend himself under the lia- 
bility law he is deprived by the new laws of his former technical 
defences — "fellow-servant negligence," "assumption of risk" and 
"contributory negligence." None of these will excuse him. This 
makes his defence more difficult and induces him to accept the com- 
pensation principle with fixed payments of small amount. This 
elective plan avoids the difficulty of unconstitutionality in that no 
employer is forced to make the compensation payments regardless 
of his fault, but has the right to his legal protection in court if he so 



THE STATE 3 #3 

prefers. This raises the interesting question — can the legislature 
constitutionally deprive the employer of his technical defences in 
the fellow-servant, contributory negligence, and assumption of 
risk rules? Is this not also " depriving him of property without 
due process of law" ? To this the courts have answered no. The 
three legal rules mentioned are not legislative statutes, nor con- 
stitutional principles but are ordinary doctrines evolved by the 
courts in interpreting the common law of negligence. They are 
not the only means by which this law could be interpreted and if 
the law itself were changed they too could be changed or repealed. 
"No man has a vested interest in the common law." In 191 1 the 
Massachusetts legislature referred to the State Supreme Court 
the Workmen's Compensation bill, which abolished the employer's 
defences in the three rules mentioned, and asked whether such a 
bill would be constitutional or whether it would deprive the em- 
ployer of his property without due process of law. On July 24th, 
191 1, the court rendered an opinion, 209 Mass. 607, holding that 
such a law would be constitutional. "The rules of law relating 
to contributory negligence and assumption of risk and the effect of 
negligence by a fellow servant were established by the courts, not 
by the Constitution, and the legislature may change them or do 
away with them altogether as defences." 

Several States have already adopted the elective plan in whole or 
in part. In New Jersey the law provides for a fixed scale of pay- 
ments, to be made to the workman according to the injury suffered 
and the partial or total disability which it causes. Every workman 
and every employer therefore knows in advance that the loss of an 
eye or limb results in the obligation of the employer for a fixed 
compensation. This compensation is not as high as it should be 
but the amount may be increased as a result of future experience. 
In Wisconsin a compulsory plan has been adopted providing for a 
payment of 65 per cent of the average wages of the workman in 
case of total disability with lesser amounts for partial disability. 
Other States are following the lead of those two commonwealths 
and the old system is slowly giving place to a modern and more 
definite principle. In all the new laws the employer is excused front 
his obligation if the accident is caused by the workman's intoxica- 
tion or willful act. 

Most employers under both the old and new laws protect them- 
selves by taking out "Liability Insurance," in which the insurance 
companies agree to reimburse the employer for any damages or 
compensation which he may have to pay because of injuries to 
his workmen. The premium paid by the employer for this insur- 
ance is fixed by the company according to the strictness of the law. 

and the risk of the business.' Such insurance is now a necessity 

for every employer o\ labor. 

1 The cost of insurance under workmen's compensation laws ranges From 
to 200% higher than under ordinary liability law. 



384 THE NEW AMERICAN GOVERNMENT 

State Insurance. — The State of Washington has provided by law 
for a public insurance system in certain dangerous industries. 
Each employer pays to the State a fixed tax according to the risk 
of his business and the number of his employes and these payments 
form an insurance fund for the benefit of injured workmen. The 
fund is administered by the State government and the exact amount 
paid to injured persons is fixed under a scale of rates similar to a 
compensation act. A few other States are now experimenting with 
the insurance plan. 

For constitutional reasons all of this legislation on industrial 
accidents has thus far been confined to the States, for they have the 
exclusive power to legislate on manufacturing industry. The Fed- 
eral Government has passed a workmen's compensation act cover- 
ing injuries received in interstate commerce, chiefly on the rail- 
ways. Since the great majority of accidents occur in manufacturing 
concerns the State laws are the principal means of regulating this 
question. But is State regulation desirable? As long as we have 
48 separate commonwealths in no way bound to co-operate with 
each other on this problem, we may look for serious difficulties in 
reaching a just solution. There is probably no government ques- 
tion before the people to-day which so intimately touches the per- 
sonal welfare of the masses of workmen as the protection against 
industrial accidents and the poverty and distress flowing from them. 
It is eminently unfair to the employer and the worker alike to 
relegate the solution of this question to the State legislatures. 
By so doing we place a penalty upon the manufacturers located in 
those States which have a high standard of laws and of executive 
enforcement. Since labor cost in all industries forms a large pro- 
portion of the total cost of production, and since the standard of 
employers' liability and of workmen's compensation materially 
raises or lowers the labor cost, it is clear that any legislature which 
passes an adequate workmen's compensation law does so with the 
foreknowledge that it is thereby raising the cost of production of 
its manufactures, and thereby directly discouraging its own in- 
dustries unless other States adopt the same standard. 1 The rep- 
resentative of a large corporation testifying before a congressional 
committee has stated that in one eastern State his corporation was 
obliged to pay damages in only two per cent of the accident cases 
occurring in its plants. Such a condition of the laws forms a serious 
barrier to social progress and tends to increase and intensify the 
bitterness of class feeling by causing a belief that both legislative 
and judicial authority are failing to protect the interests of all 
classes with fairness. This thought has led many observers to 

1 When the compensation bill was before the Pennsylvania legislature in 19 13, 
reliable testimony was given showing that because of the great difference in 
wages and other expenses between the soft coal mines of Pennsylvania and 
West Virginia, the passage of the bill would mean the extinction of certain 
Pennsylvania companies. 



THE STATE 385 

look towards the German system as a desirable policy. The Ger- 
man plan abandons completely State control of accident legislation, 
vesting this power in the National Government. The employers 
in each industry are obliged to band themselves together in associa- 
tions which administer and pay the costs of accident insurance. 
This accident insurance covers every workman in the industry and 
is paid to him in regular weekly amounts without legal dispute, as 
soon as the injury is officially confirmed. The rates are uniform 
throughout the German Empire, being based on a percentage of 
the average weekly wages which the workman had earned in recent 
years. Since the costs fall on the employers as a whole, no one 
employer is so heavily damaged by an accident as to lose his business 
existence, yet the pressure of the whole employers' association is 
brought to bear to prevent accidents by every reasonable means 
in order to keep down the assessments which are necessarily levied 
on the employers to cover the cost of the insurance. The disad- 
vantage of this plan is that it encourages a large number of disputes 
over the amount of pension to be granted, and many cases are taken 
up to the higher authorities on appeal, so that it involves much red- 
tape and procedure. The authorities on their side have also been 
inclined to administer the law in such a liberal spirit as to make it 
a form of charity. Despite these defects, however, the German 
system offers the practical advantage that the injured person is 
not required to spend a large proportion of his relief funds in at- 
torney's fees, court costs, and protracted litigation. 

National Government Plan. — Mr. Miles M. Dawson, a promi- 
nent insurance actuary, has suggested that the German plan be 
modified to fit American conditions. He proposes a Federal Govern- 
ment tax on all industrial establishments, the tax to be regulated 
according to the number of workmen employed and the risk of the 
industry. From this a fund is to be created which shall be managed 
by the Federal Government, for the benefit of injured employes 
in each industry. Upon this simple and inexpensive basis Mr. 
Dawson proposes that there shall be established a National Work- 
men's Insurance system, which shall gradually be extended to 
cover all the chief industries of the United States, and shall later 
be enlarged in scope to include sickness and other forms of insurance. 
He urges that the plan is constitutional, because it is based primarily 
on the taxing power of Congress which, as we have seen, may be 
used for the general welfare. Although Congress may not regulate 

matters which have not been given to its jurisdiction by the Con- 
stitution, it may tax and may devote the proceeds of taxation to 
such purposes as it pleases in the general welfare. Mr. Dawson 
claims that insurance against industrial accidents would be such a 
purpose, and that the tuiuls from Federal taxation levied in this 
Way might be appropriated for such a purpose. On the other side. 
however, it must be admitted that some regular machinery for the 
measurement of the risk oi each industry, the nature ^i injuries 



386 THE NEW AMERICAN GOVERNMENT 

received by workmen, the regulation' and settlement of cases or 
compensation and many other similar duties would be necessary. 
The whole purpose and effect of the system would be to regulate 
certain industrial conditions which by the Constitution have been 
left exclusively to the States. In order that the Federal Govern- 
ment shall either itself manage or even regulate insurance, a consti- 
tutional amendment is undoubtedly required. 

Against any form of State or Government-managed insurance 
it is forcibly urged by representatives of the insurance companies 
that — (a) Political pressure would inevitably be brought to bear 
to increase the amount of money to be paid in cases of accident 
to an undue extent. No political party would be able to withstand 
this pressure. The leaders in rival parties would soon seek to catch 
"the labor vote" by advocating greater and greater insurance 
payments in accident and sickness, until the whole Government 
insurance plan would become a crushing burden upon industry. 

(b) The adjustment of insurance claims it is urged, requires the 
interplay of conflicting interests. The private companies now make 
a special study of these claims and know how to investigate with 
care each individual case, and to keep down the amount of pay- 
ment within proper bounds. How could the Government do so? 

(c) The stimulating influence of competition between private 
companies would also be removed, the expenses of management 
would soon mount up, the lack of effective supervision would make 
itself felt, and a government system would soon cost the insured 
more than under present conditions. 

Whether the National Government should undertake the direc- 
tion of a general insurance plan of this kind is a mooted question 
but undoubtedly its regulative authority should be enlarged by 
constitutional amendment to cover the regulation of the whole 
field of insurance, including the problems of compensation for 
industrial accidents. There can be no doubt that this would offer 
the most uniform, equitable and efficient solution for all interests 
concerned. 

Sickness Insurance. — Even more serious than industrial acci- 
dents are the effects of illness and premature death of the family 
head. Many sociologists have pointed out that if some effective 
means of meeting this danger could be found the families of wage- 
earners could be kept together, the wife or widow would be able to 
continue her care of the children and the latter could remain in 
school until they had secured a training for better paid positions. 
Professor Henry R. Seager who is a leading authority on this 
question, has shown x that all the leading nations have progressed 
far beyond us in its solution. " Through organized illness insurance, 
obligatory and all-embracing, such as Germany has had since 1883 
and the United Kingdom is just beginning to have through the 
national insurance act of 191 1, the burden of illness and premature 
1 In the Annals of Political and Social Science, July, 1913. 



THE STATE 387 

death which now falls with crushing weight on the individuals and 
families affected, can be in part lifted and in part shifted. Under 
the systems of these countries, illness for the wage-earner no longer 
means income cut off at the very time when necessary expenses are 
increased by doctor's bills, medicines and special dietary. Instead, 
on the one hand, part of the previous wa^es continues to be re- 
ceived by the family, while on the other, organized and systematized 
machinery for restoring the victim of the illness as quickly as 
possible to health and full earning capacity is set in operation. The 
United Kingdom, as one feature of its illness insurance system, will 
have a fund of $5,000,000 a year to spend on hospitals and sanatoria. 
Germany in consequence of her more prolonged effort has seen the 
death rate reduced from 10 to each 1,000 wage-earners insured in 
1888, to only 7.8 to each 1,000 in 1907. Neither one of these sys- 
tems operates perfectly. On the basis of European experience it 
should be possible for us to introduce a still better system of illness 
insurance here. But when we do so we shall experience the same 
beneficial effects as regards relieving the congestion in the unskilled 
and underpaid labor market that Germany has experienced." 

The Wage Rate. — The minimum wage proposal is a new one in 
American government. In England for many centuries the county 
courts were authorized to fix farm wages at their quarterly sessions, 
and a statute of Elizabeth's reign provided minute, detailed rules as 
to hours of work, wages, meals, periods of rest during the day, etc. 
This was in line with the other laws of that time which regulated 
prices, quality and size of cloth and other staple articles. The 
reaction against all forms of government regulation swept away 
price, quality, size, labor hour and wage regulation and ushered in 
the complete free trade, free labor era in England. It was this 
principle of individual freedom that was adopted by the early 
American States as best suited to their farming interests and to 
the scarcity of labor and capital and the abundance of free land. 
In a new country the laws always allow the greatest liberty to the 
individual, — if they do not, those elements which arc dissatisfied 
move on to the free lands on the frontier. So it has been until about 
1880 in America, the stead}- surge Westward not only made the 
Western States more liberal to the individual and more careful 
of his rights but also strongly influenced the Eastern common- 
wealths and still leads them to adopt many Western principles. 

Until lately we have believed in the utmost legal freedom in 
wage rates and other prices, allowing workmen and employers to 
deal together as they chose, The beginning oi a change is marked 
by the appointment of Wage Commissions in several States, com- 
mencing with Massachusetts. Most oi these Commissions have 
no authority to fix wages by an official ruling but they are charged 

with the duty of inquiring into wage conditions in all parts oi the 
Commonwealth, and wherever they find a prevalent scale of wages 

which is so dangerously low as to threaten the health or morals 



388 THE NEW AMERICAN GOVERNMENT 

of the women * employes, the Commissioners may, after suitable 
hearings and investigation, declare that the rate should be raised 
to a given figure. The employer need not accept this figure and 
it has no binding legal power; but, as the opinion of a disinterested 
impartial body, appointed by the State, it commands the force and 
backing of public opinion and frequently brings about an imme- 
diate change. The Massachusetts Commission is permitted to 
ascertain and publish the names of those employers who do not 
conform to the minimum rates as determined by the Commission, — ■ 
the purpose being to strengthen the influence of public opinion in 
such cases. 

The other and more advanced type of law is well illustrated by 
the Wisconsin Act of 19 13 which is the most noteworthy measure 
on this subject thus far enacted in the United States. It provides 
that "Every wage paid or agreed to be paid by any employer to 
any female or minor employe, except as otherwise provided in 
Section 1729S-7, shall be not less than a living-wage." A living- 
wage is declared to be such compensation as shall be sufficient to 
enable the employe to maintain herself in reasonable comfort, 
decency and physical and moral well-being. "Any employer pay- 
ing, offering to pay, or agreeing to pay to any female or minor 
employe a wage lower or less in value than a living-wage shall be 
deemed guilty of a violation of the statutes." The law is enforced 
by the Industrial Commission which receives from all employers 
who have three or more female or minor employes, a statement of 
the name, sex, age and wages of such employes, the nature of the 
work that they perform and such other information as the Commis- 
sion may require for its official duties. Upon the basis of these 
reports from employers the Commission makes a classification of 
the conditions in each industry. When a complaint of excessively 
low wages is made, the Commission investigates and if it finds 
reasonable cause to believe that the rate is below the safety line, it 
appoints an advisory board composed of representatives of the 
employers, employes and the public, which assists in the further 
investigation and determination of the case. With the aid of this 
board the Commission then hears the evidence on both sides and 
fixes a minimum rate or living-wage for all women employes or 
minor employes within the class. In order to prevent the exclusion 
from employment of partially disabled workers or those who are 

1 The low wage rate is a question of peculiar importance to women; most of 
them do not intend to remain permanently in employment, or they work in order 
to supplement the family income — not to support themselves entirely — and 
for these reasons they will accept a lower wage rate than men can afford to take. 
Also they do not provide themselves with, the technical training which would 
otherwise be necessary. When they apply for positions as unskilled workers, 
willing to take whatever employment they can secure at whatever terms are 
offered, they necessarily are given wages at such a low rate that those who have 
no family aid soon find it difficult if not impossible to live in comfort and health 
upon their earnings and lay by a reserve for the future. 



THE STATE 389 

unable to work full time at their callings the law provides that such 
as are not able to earn the living- wage may be specially licensed by 
the Commission to work at a special rate. Other exceptions under 
unusual conditions may also be made by the Commission. A viola- 
tion of the statute by the payment of lower wages than the rate 
fixed by the Commission is punishable as a misdemeanor. 

While most of the States which have adopted minimum wage 
laws have provided like Massachusetts for publicity by a State 
Commission which investigates wage rates, in Oregon the law 
has been given a compulsory feature resembling the Wisconsin 
statute. 

The State Commissioners have investigated the wages paid to 
7,000 women in Portland and 1,100 in other parts of the State and 
after tabulating the results have recommended a compulsory 
minimum wage. The law applies only to women and children and 
forbids their employment in any calling which may endanger their 
health or morals. It also prohibits the payment to them of wages 
which are inadequate to supply the necessary cost of living and to 
maintain them in health. The minimum of wages, the maximum of 
hours, and other conditions of labor are fixed by an Industrial 
Welfare Commission, which is given full power to investigate and to 
supervise local investigations which are conducted by special com- 
mittees. When a local committee recommends a minimum wage 
for women and children in any district or industry, this rate of 
payment becomes binding only when approved by the com- 
mission. 

A careful examination of the Massachusetts and Wisconsin plans 
shows that many popular ideas concerning the living-wage laws are 
mistaken. Such laws apply only to women or to women and 
minors, because these are peculiarly subject to the care and protec- 
tion of the State. Again the acts do not provide an average wage but 
only a minimum; they do not regulate the pay of the great majority 
of workers but rather of that class which are so clearly below the 
level of subsistence and decent well-being as to convince an in- 
vestigating body of the fact. Finally the laws do not either compel 
or prevent the employment of anyone. Every employer is at lib- 
erty to take or discharge any person whom he selects; he is re- 
stricted only in that he cannot pay less than will support a human 
being under ordinary conditions. 

The need for legislation of this kind is due to the important 
changes through which manufacturing and retail business is now- 
passing, the effort to-day is to produce and market an immense 
output at a low price, rather than a small total at a high price. This 
new policy means the employment oi immense quantities oi un- 
skilled labor and of machinery, so that a chief item of expense is the 
unskilled pay roll and when the labor oi foreigners and oi women 

and children is offered at a reduced figure, the employer eagerly 

welcomes it as a means of competition in the keen Struggle in which 



390 THE NEW AMERICAN GOVERNMENT 

he is placed. One employer having done so, others in the same 
locality perforce must follow and there soon spreads through a 
whole section or even an entire industry the low wage level that we 
have seen in many of our mill districts. Most employers would 
prefer not to compete on this basis; if given the choice, they would 
take on workmen with a higher standard of living and pay them 
normal, reasonable wages, but they are not given the choice. Low 
freight rates, wide markets and large production mean that each 
producer must be prepared for competition from areas far distant 
from his plant. The foreigner accepts less because he is accustomed 
to a low standard of living and willing to take what is to him a 
great advance over European wage rates; the woman and the child 
are part of a wage-earning family. They can compete at lower 
wages because they measure wages by what the whole family earns. 
In this way certain unskilled, unorganized masses of labor either 
find their wage payments nearly stationary in the face of steadily 
increasing cost of living or else actually falling in amount. It was 
shown in the strike at Lawrence that unskilled foreigners who had 
families dependent on them, were in some instances earning $6.25 
weekly. The publication of these and similar facts has led to the 
appointment of numerous legislative committees, and these in turn 
have discovered further evidence of the wide extent of the condi- 
tion. The constitutionality of a compulsory law like that of Wis- 
consin has not yet been established but it could probably be shown 
to be valid on the ground that it did not limit the liberty or prop- 
erty of the individual except for the purpose of protecting the 
health and safety of women and children, — a purpose which has 
often been recognized as constitutional in other State laws. It is as 
yet too early to see the full results of the Massachusetts and Wis- 
consin types of laws; both plans must be judged, neither by the 
claims of their friends nor the fears of their opponents, but by the 
practical benefits or disadvantages which they produce. The 
Massachusetts or publicity type is to be strongly preferred over the 
compulsory system if public opinion is active, well informed and 
vigorous. In Great Britain, Parliament in 191 2 passed a minimum 
wage act for coal mining, chain and box manufacture, which pro- 
vided for local wage boards and authorized them to determine in 
each instance the minimum rates to be paid. The principle- is an 
extremely radical one and is regarded by all as a last resort to be 
used only in case all other measures fail. It was brought about by 
the desperate conditions of the three industries mentioned, in which 
a large number of persons were reduced to destitution by the lower- 
ing of wages and the increase in cost of living. The law has been 
successfully applied in both the chain and box industries. It is 
clear, however, that in many other lines of business the law would 
give no relief because the workers are already paid a living wage and 
their poverty comes from irregular employment and long periods of 
enforced idleness. The problem here is not a governmental one, 



THE STATE 391 

nor is the solution a compulsory higher wage rate but rather the 
provision of some supplementary employment to fill out the 
worker's time and income. 

Cash Payment of Wages. — Many corporations formerly paid 
their employes part or all of their wages in orders upon a store, run 
by the company. This is frequently done in the mining regions 
where the miners sometimes live at a distance from village stores. 
The men object to this practice, claiming that a high scale of prices 
is charged which actually makes their wages less than the face value. 
On demand of the unions most of the mining States have passed laws 
requiring corporations to pay wages in cash, but in some of the States 
these laws have been held unconstitutional as interfering with the 
freedom of contract. Another similar law has been directed against 
the practice of reserving part of the wages as a deposit, or as security, 
or as a deferred payment, which keeps the laborer from leaving with- 
out notice or engaging in strikes. Several States have passed Acts 
requiring the payment of wages at least semi-monthly, to prevent 
this custom and while some of the State tribunals have held these also 
to be violations of the liberty and property rights of the contracting 
parties, others have upheld them as protections of the laborers against 
injustice. 1 

Unemployment. — In calculating the wages of labor, we must 
remember that in all trades and occupations the dull period often 
causes extended loss of work — the less the skill required, the greater 
the irregularity of work in most of the industries. In America little 
has been done outside of New York, Massachusetts and Wisconsin 
to assist a worker in this important question, but in foreign countries 
an extensive system of free employment bureaus has been organized 
with the best results — Great Britain has already provided by law 
for 450 labor exchanges; in the first three months of the organization 
over 63,000 men and boys and 23,000 women and girls were located 
in employment. These bureaus also render an important service 
by collecting and publishing official information as to the occupations 
that are overcrowded, and those in which a demand exists. Great 
Britain in 1911 took a further step by enacting a law requiring in- 
surance against unemployment — this Act governs some 2,500,000 
employes — the cost of the insurance is paid partly by the employer, 
partly by the workman, and partly by the Government. All laborers 
who are out of work must register with the public employment 
bureau; refusal to accept employment at the wages oi their usual 
trade, results in a stoppage of insurance benefits. 

4. Settlement of Labor Disputes. — Our State governments are 

1 The constitutionality oi such laws has been upheld by the Supreme Court 
in Erie Railroad v. John Williams. 233 V. s. 071, 101.}. The Erie Company 
claimed that the New York law requiring the semi monthly payment oi •. 
to its employes was an interference with its property and liberty under the 14th 
Amendment. The court oiled that while there might he some extra expense 

connected with such payments, the State had a constitutional right to regulate 

the ma iter as a protection to those who worked lor a Living, 



39 2 THE NEW AMERICAN GOVERNMENT 

commencing to render most valuable service in the settlement of 
strikes and lockouts. The waste from such disputes, it has been 
estimated, equals the loss by fire, and exceeds $200,000,000 every 
year. Most of this sum might readily be saved to workers and their 
employers; one of the best means of doing so is not by State action 
at all but by the voluntary arrangement between labor union and 
employers' association to submit all controversies to a joint arbitra- 
tion committee, under what is called a "trade agreement." These 
trade agreements have been formed in a great variety of industries 
and cover the rate of wages, hours, apprenticeship and other con- 
ditions of labor. The great advantage of this plan is that it leaves 
open to dispute as few questions as possible and promotes amicable 
relations on both sides. Whenever a difference arises it is automat- 
ically referred to the joint committee which decides the matter, 
usually by a compromise. A still better voluntary plan has been 
perfected in certain branches of the clothing trade in Chicago and 
New York where even the smaller grievances in the shops are immedi- 
ately taken up by a labor expert, paid by the employer, and a just 
and satisfactory solution found if possible, with an appeal, if de- 
sired, to the arbitration committee. This second plan is based on 
the sound principle that the immediate "smoothing out" of petty 
differences is the most effective way of avoiding serious disputes. 
It has proven highly satisfactory in the cities named and is being 
copied in others. But aside from these plans, originated by private 
firms and individuals, there is urgent need of some public authority 
which shall aid actively in the decision of labor controversies. If all 
employers were well informed and able to make use of up-to-date 
methods of co-operation among themselves, no public action would 
be necessary, but a majority are not, and in consequence our private 
and voluntary means of preventing industrial strife are still archaic 
and ineffective. Such strife is still in the condition of justice in the 
dark ages, when parties to a lawsuit were allowed to fight out their 
battles before the court. This has led Congress and the more progres- 
sive State governments to establish boards of arbitration and con- 
ciliation to which disputes may be referred as to an impartial tribu- 
nal. Massachusetts has led the way by the Act of 1886 amended 
and codified in 1913; this law sets up a Board of three members, 
chosen by the Governor, one from an association of employers, one 
from a labor union and the third on recommendation of the first two. 
They are paid $2,500 yearly and appoint a paid secretary. An im- 
portant feature of the plan is the employment of expert assistants 
by the Board to investigate trade and labor conditions affecting any 
dispute. These are usually nominated one for each side, by the par- 
ties themselves, but the Board may also appoint others if it sees fit. 
Such experts have proven a tower of strength in fortifying the Board's 
position on all disputed points and in acquainting its members with 
the salient facts in each controversy. Armed with the information 
so secured and with the authority to summon witnesses and take 



THE STATE 393 

testimony under oath, the Board is well qualified to render decisions 
which will command the respect and confidence of both sides. Its 
work is of two kinds, (a) conciliation, that is the bringing together 
of the parties so that they will themselves find a settlement of the 
affair; and (b) arbitration, which is the decision of the affair, not 
by the parties, but by the Board. The Board's first effort is to con- 
ciliate. When notified of an impending strike or lockout the Board 
at once offers its services as a mediator and tries to persuade both 
sides to settle the matter amicably between them, or, failing this, 
to submit it to arbitration. It may also investigate the causes of 
the difficulty and render a public report with recommendations, 
showing what steps should be taken or changes made to secure peace. 
The effect of such a public report is usually to force an arbitration 
of the question at issue. If the parties agree to arbitrate they sign 
an application to the Board accompanied by a written promise to 
abide by its decisions and to continue in business or at work until the 
decision is rendered. The Board then proceeds to the spot and holds 
public hearings, making a final decision within three weeks. This 
decision is published and recorded with the clerk of the city or town 
concerned. It is valid for six months unless either party gives a 
written notice of 60 days that it will not be further bound by the 
award. No arbitration is undertaken in any case which is in the 
courts, nor can any case be arbitrated without the consent of both 
sides. If the parties prefer they may take their disputes to a local 
board of arbitration composed of one arbiter appointed by each 
side and a third by the other two; the decision of such a local board 
is binding in the same way as that of the State Board. The Mas- 
sachusetts system has been strikingly successful. The Board's 
influence has been persuasive, not compulsory; it has steadily and 
insistently urged the parties to form trade agreements and has thereby 
sought not only to settle the cases before it but to forestall and pre- 
vent a large number of future controversies. Even in the most 
difficult and trying conditions of the Lawrence textile strike, in which 
an intolerably low level of wages, a violent, revolutionary labor 
organization, and the mutual distrust and fear of the employers 
made it impossible to secure any co-operation towards a general 
settlement, the Board was able to obtain an early adjustment of 
the dispute in the mills of the largest company concerned. In 10 10 
there were 208 cases of arbitration, in 1011, 175 and in 1912, 115. 
There were many more instances of mediation by which serious 
controversies were avoided. A brief summary of two cases will 
make clear the methods and the value oi the Hoard's work. The 
employes of the Boston Elevated Railway were solicited to join a 
union by an organizer o\ the " Amalgamated Association o\ Street 
and Electric Railway Employes oi America." The following events 
then occurred in rapid succession: 

A small number enrolled in the union, 

Company officials seek to prevent formation of such a body, 



394 THE NEW AMERICAN GOVERNMENT 

One hundred forty-nine men discharged without explanation 
other than " unsatisfactory service," 

Large meeting of employes votes to strike, 

Strike begun, 

State Board investigates, 

Reports that men were discharged for joining union and that 
strike-breakers were running the cars in an objectionable way, 

Recommends arbitration or amicable agreement, 

Dispute referred by both sides to State Board, 

Settlement effected. 

A difficulty of a different nature arose in the Holyoke mills of the 
American Writing Paper Co. and the Central Labor Union of that 
city requested the mediation of the Board. The facts and settlement 
in summary form were as follows: 

Two mills install a more efficient system, and it was feared that in 
certain kinds of team work two girls would have to do the work of 
three, 

The new system increases output 50% per capita, 

Girls ask for 25% increase in wages, 

Employer declines, 

Girls strike, 

Work transferred to another mill, 

Girls strike also in second mill, 

Some few men employes strike in sympathy, 

General strike feared in all departments, 

Board interviews both sides and arranges conference, 

Settlement effected, increased wages, 

Agreed that there shall be no future strike before a conference is 
held. A committee of employes shall have the right to take up griev- 
ances with the management and an appeal to the general manager. 

The State arbitration plan has proven valuable not only as an 
aid to employer and workmen, but as a boon to that third party, 
the public, which always loses, whether the strike itself is a failure 
or a victory. State arbitration is a recognition of the public interest 
in industrial peace. There is no more reason why warfare should 
be needed to settle a labor controversy justly than it is necessary 
in a dispute between two parties claiming the same land. In the 
latter case we have set up judicial courts to decide the issue, in the 
former a board of arbitration. The public has a vital interest in 
seeing that the question is decided justly and peaceably. The Ca- 
nadian government has recognized this interest clearly by the so- 
called "Industrial Disputes Act" drafted by Mr. Mackenzie, a former 
Commissioner of Labor in the Canadian Cabinet. This law pro- 
vides that no strike or lockout may be begun in any public sendee 
industry until the Commissioner has been notified in order that an 
official investigation may be made. Such an inquiry is undertaken 
immediately by a board composed of three members one by each 
party and the third by the other two. Witnesses are examined on 



THE STATE 395 

the scene of the difficulty and a brief report of findings of fact and 
recommendations for a settlement is made. This report is pub- 
lished at once and the decision which it recommends then becomes a 
basis for intelligent public opinion. The report of the board is bind- 
ing on nobody. It is simply a statement to those concerned and 
to the public, that an impartial official body with full power to in- 
vestigate, has examined the facts and recommends a solution. Its 
usual effect is to force an early settlement along the lines laid down 
in the report. It will be noticed that the Canadian law forbids a 
strike in a public service industry until notice is given to the Labor 
Office. Such a provision could probably not be placed in any Amer- 
ican law on the subject because it would interfere with the liberty 
of the individual and would thereby violate the 5th or the 14th 
Amendment to the Constitution of the United States. But the 
Massachusetts Act, already described, secures many of the advan- 
tages of the Canadian plan by requiring mayors of cities and towns 
to notify the State Board of any impending labor controversy in 
their localities, which has or may become serious, and by authorizing 
the Board of its own initiative to investigate and report and publish 
its findings. 

In New Zealand a compulsory plan exists, under which the dispute 
is first investigated by a local district board of conciliation which 
tries to secure a voluntary agreement between the parties. If this 
effort fails the case goes to the central court of arbitration where it 
is decided with much the same binding force as a lawsuit. Either 
party may make the application to the court and the other is obliged 
to join in the proceedings of arbitration and be bound by the decision. 
This system also would be unconstitutional in America because of 
its compulsory feature, which would violate the " liberty and prop- 
erty" clauses of the 5th and 14th Amendments. Many employers 
and labor leaders are opposed to compulsory arbitration, while some 
union officials are even opposed to any form of arbitration which 
will interfere with the right to strike at any moment. They oppose 
any binding form of decisions which for a given period, such as six 
months, forbids a reopening of hostilities, their reason being that 
a court or arbitral decision which compels the workers to remain 
at their labor for such a period is in substance a revival of serfdom. 
Regardless of this objection and of the constitutional obstacles in 
the way, compulsory arbitration would not prove feasible in this 
country because of the impossibility of enforcing a decree or decision 
against the workers. If the employer violated the decision in a com- 
pulsory suit forced on him against his will, he could be compelled to 

observe it because his property could be seized; but if a like event 

occurred to the laborer he could immediately cease work and no 
arbitration award nor court decree could force him to resume it. 
Our courts of equity which enforce contracts when necessary, have 
repeatedly declared that they have no means oi compelling the per- 
formance of a labor contract because it is impossible lor the court 



396 THE NEW AMERICAN GOVERNMENT 

to force a worker to perform satisfactory service to his employer, 
the court cannot watch over the worker's every act. Above all such 
a compulsory service would be a violation of the 13th Amendment 
which forbids slavery or involuntary servitude. Nor could the em- 
ployer collect damages from the worker because the latter would 
usually be found to have insufficient property. 

The Worker's Legal Status. — The laborer has demanded and 
received a special legal position in certain cases, especially in his 
claims for wages. For example a carpenter or mechanic who has 
worked on a building but has not received his wages, has a claim 
against the real estate which takes priority of everything except 
taxes. This "mechanic's lien" as it is called, exists in all the State 
laws and is an effective method of protecting the worker's interests 
in the building trades. In suits for debt against laborers their tools 
of trade are also exempted from seizure by the creditor. In some of 
the States the new liability and compensation laws require the em- 
ployer to take out liability insurance to cover the cost of claims which 
his workmen may legally have under the new laws. This is done 
because an insolvent employer would be unable to pay such claims, 
which would leave the injured workmen without legal compensation. 
Such a claim now becomes valid against the insurance company. 
The representatives of labor also demand still further protection from 
the law in the shape of a complete change in the methods of granting 
injunctions in labor disputes and in the punishment for violation of 
these injunctions. This demand has been considered in the Chapter 
on The Judiciary. In the national field of legislation the Clayton Act 
grants or appears to grant the demand of some labor leaders that 
injunctions shall not issue in certain labor disputes and that boycotts 
between laborers and their employers shall be legal when applied 
to interstate business. 

REFERENCES 

The Bulletin of The U. S. Department of Labor, Washington, D. C, published 
bi-monthly. This admirable journal contains an almost complete record of all 
important National and State legislative decisions and administrative rulings 
on the problems of labor law. 

The State Factory Inspector, or Industrial Commissioner, Annual Report. 

L. D. Clark: The Law of the Employment of Labor. 

Proceedings and Publications of the American Association for Labor Legislation. 

John B. Andrews: A National System of Labor Exchanges, Vol. I, No. 8, 
Part 2 of "The New Republic," December 26, 1914. 

QUESTIONS 

1. Point out the main aspects of the labor problem which now face the 
State governments. 

2. Why should the State intervene to regulate factory conditions? 

3. If you had a model factory with good, sanitary conditions, would you 
favor State factory inspection? Why? 

4. Explain the chief purpose of factory legislation. 

5. Outline the executive authority which enforces the laws in your State. 

6. What is the difference between your State system and that of others 
described in this chapter? 



THE STATE 397 

7. Give a brief sketch of the usual provisions regarding dangerous machines. 

8. Of those on ventilation. 

9. Of those governing decency, modesty and morality. 
10. Those governing safety in case of fire. 

it- Those on child labor. 

12:. A State law provides that children over fourteen may work in factories 
if their age is attested by their parents in an affidavit. What are the practical 
weaknesses of such a law? 

13. How are the hours of labor of women regulated? 

14. A uniform child labor bill is proposed for all the State legislatures. What 
would be your views as to its desirability? 

15. What are your views as to the State constitutional authority to limit 
the hours of labor of men in dangerous industries? Why? 

16. In safe industries. Why? 

17. Explain what is meant by a "sweatshop" and outline the usual provi- 
sions of the laws governing it. 

18. Why is the "sweatshop" especially dangerous to the laboring class? 

19. Why is it difficult to regulate? 

20. Ought the State to attempt to regulate this question ? Reasons. 

21. Explain the general weaknesses of factory inspection. 

22. At a public hearing before a legislative committee, various methods of 
factory inspection are proposed, one of them being to prescribe in detail in the 
law itself the various rules, regulations, nature of safety appliances, ventilation, 
sanitation, etc. What would be your attitude toward this plan and why? 

23. What other possible system of factory regulation might be adopted. 
Examples. What would be your attitude towards it? 

24. Why is the question of damages for industrial accidents so generally 
discussed in America to-day? 

25. Explain the three most important solutions of the question thus far 
attempted. 

26. What is meant by the employer's liability plan? 

27. What is contributory negligence? 

28. Explain the fellow-servant rule. 

29. Explain the doctrine of assumption of risk and its effect on the recovery 
of damages by the injured man. 

30. How far does the employer's liability system satisfy reasonable require- 
ments as to the time of securing early relief in a meritorious case? Amount of 
damages awarded? Certainty of award? 

31. Explain the workmen's compensation plan. 

32. Summarize the Federal Act of 191 2 on this subject. 

33. Explain the difference between compulsory and elective compensation 
acts. 

34. A State constitution guarantees life, liberty and property with due 
process of law. The legislature passes a workmen's compensation act providing 
that upon injury to a workman in a factory the proprietor must immediately pay 
the injured man a fixed amount determined by law, regardless of whoso fault 
caused the injury. Ts this valid under the State constitution? Cite an authority. 

35. How has the New York constitution been changed to provide for a com- 
pulsory act? 

36. Explain the Ohio and New York laws. 

37. How has the constitutional difficulty been avoided in the elective plan 
of workmen's compensation? 

38. Explain the New Jersey system. 

39. What are your impressions o\ State insurance as represented by the 
Washington plan? 

40. What are the objections urged by insurance men against State insurance? 

41. Outline the proposal fora National Government system of working men's 

insurance. 

4a. Resolved that the federal Constitution should he amended to allow 
Congress to regulate insurance. Defend either side. 



398 



THE NEW AMERICAN GOVERNMENT 



43. Explain the need of sickness insurance for working men and outline the 
plans which have been adopted in other countries in this field. 

44. What is a minimum wage law? 

45. Why and how has it been adopted in England? 

46. Explain the particular importance of the problem for women. 

47. Summarize the Massachusetts Act, giving the powers of the commission. 

48. How does this differ from the Wisconsin law? 

49. How does the Wisconsin Act affect those persons who cannot work full 
time? 

50. Why is the low wage rate attracting greater attention under modern 
conditions of production and marketing? 

51. What are your impressions as to the relative value of the Massachusetts 
and the Wisconsin types of minimum wage law? 

52. Explain the need for cash payment of wages which has led to State 
laws on that subject. 

53. What can the States do and what have they done to relieve unemploy- 
ment? 

54. Can a State government aid in the settlement of strikes and lockouts? 

55. What is your impression as to the need for such action? 

56. Outline the chief features of a State plan of mediation and arbitration. 

57. In a debate you are advocating a State system of arbitration. Outline 
your argument, with the powers to be given the State authority and show from 
actual experiences of a State the advantages of your plan. 

58. Give some examples of successful State arbitration. 

59. How does the system affect the public? 

60. Summarize the Canadian Industrial Disputes Act and give your impres- 
sions as to its success. 

61. Outline the New Zealand plan and show how it differs from the Canadian 
and Massachusetts systems. 

62. Would the Canadian or the New Zealand plan be constitutional in an 
American State? Reasons. 

63. Prepare a report on State arbitration of labor disputes showing what 
our system is and any possible improvements that might be made in it. 

64. Are laborers and mechanics given any special status under our laws? 
How and why? 

65. Have their unions any special exemption from the Federal anti-trust law? 

66. What are your impressions of the justice of this exemption? 



CHAPTER XX 

THE STATE— Continued 
THE STATE AND EDUCATION 

The Modern Basis of Public Education. — That rapid transforma- 
tion in our school and college system which is now attracting such 
wide attention is mainly due to two new ideas, — first, we now see 
that advanced "schooling" is not an advantage for those who can 
afford it but a necessity for all classes, so that we are taking steps 
to open up the higher and highest grades of secondary and college 
work to the humblest citizen; second, we have discovered that no 
one fixed rigid group of courses is " education," but that many 
new subjects offer a training of the highest value. These two 
changes in our thought have enlarged the duties and service of 
the State government to surprising proportions. In 1910, the 
latest year for which statistics are available, there were enrolled in 
the public schools 17,800,000 pupils, or 71% of the persons of school 
age. The average attendance was 12,800,000. The teachers 
numbered 523,000, of whom four-fifths were women. The average 
payment of women teachers was $53 monthly; of men $6S. The 
value of school property was over one billion dollars, and the ex- 
penditures for the year were $426,250,000. This expenditure repre- 
sents $4.64 per capita of the population, or $33.34 per pupil in at- 
tendance. 

We are also encouraging each individual to spend a longer time 
upon his schooling and we now see that even adults can profit by 
vocational studies and advanced technical courses. At the same 
time the number and variety of subjects to be taught has broadened 
out until there are at present few fields of human knowledge which 
are not included in the programs of the State supported institu- 
tions. More of us are "going to school," we are going for a longer 
time and are studying an endless variety o\ new subjects with great 
advantage. Literally the nation is now in training. 

The Subsidy System. — To satisfy this new demand, the States 
have built up and strengthened their administrative machinery 
by many devices chief among which are the State subsidy to local 
school districts and the State minimum standard for all local 
schools. The effect of these has been to extricate the weaker 
school districts from hopeless poverty and inability to meet the 
new demands, on the one hand, and to bring order and system out 
of the chaos of local inefficiency, on the other. The State Hoard 
of Education or the Superintendent recommends for a share in the 

399 



400 THE NEW AMERICAN GOVERNMENT 

State appropriation, those districts which have kept their local 
schools open for a sufficient length of time during the year, and have 
maintained adequate standards and teaching force in the subjects 
required by the State. Sometimes the State appropriation equals 
one-third of the whole local school expense. This large subsidy 
from the State treasury is an essential item in the income of the 
local district and no effort is spared to satisfy the prescribed stand- 
ard, and to share in its benefits. This plan, which is adopted from 
the English " Grant in Aid" system, has become necessary because 
of the extreme and bumptious independence of the local district 
authorities, which resisted all other efforts to raise the standard, 
while the legislature on its part was unwilling to force a change by 
compulsory methods. 1 The plan would work far more effectively 
if the State Superintendent were more freely furnished with his 
own agents to inspect the local schools and if we could rescue our 
local school administration from the handicap of party politics. 
Some of our Commonwealths in addition to the subsidy plan have 
tried further means of securing efficiency. 

The New York Plan. — The System adopted by New York has 
had an excellent influence upon the public schools. This is a central 
board of regents with authority to grant, alter and revoke the char- 
ters of universities, colleges, academies, etc., distribute to them the 
funds appropriated by the State, inspect such institutions, require 
annual reports, establish examinations and confer certificates, 
diplomas and degrees. But, in addition, the board by its power to 
fix the standard of examination for all degrees granted by the 
State, controls all the schools, since under this power it prescribes 
a certain preparatory as well as college course for the degree. In 
this way a high and uniform requirement is kept in all the secondary 
schools of the State. The executive work is conducted by a Com- 
missioner of Education chosen by the board. His powers in the 
main are like those of other State superintendents. Numerous 
other Commonwealths have recently followed the New York 
plan and have given extended powers to the central officials so 
that the tendency toward central State control is a firmly fixed 
and successful policy in all our school systems. 

The Central Authority. — The question as to the form of the cen- 
tral authority has been answered differently in different common- 
wealths. Most of them have established a department of public 
instruction under the control of a single official, the superintendent. 
Others have given the power to a board. At first glance the differ- 
ence seems slight but a serious question of principle is involved. 
A single-headed authority, the superintendent, possesses the ad- 
vantages which arise from any centering of authority, at a definite 
point, viz., quickness and efficiency of action, greater willingness 
to accept new ideas and to keep abreast of the times, and definite- 

1 Massachusetts is now considering the entire support of the public schools 
by the State treasury. 



THE STATE 401 

ness of responsibility and power. In favor of a board holding office 
for a long time, a greater freedom from political interference and 
from partiality is urged, also greater steadiness and conservatism 
and a broader point of view. It will be apparent that where the 
fear of political interference is predominant, the board plan should 
be preferred, while in other States the greater danger might arise 
from stagnation and inactivity; if so, power should be vested in a 
superintendent. In estimating the relative desirability of the two 
plans it should be remembered that a steady increase in the powers 
of the central State officers is taking place, with a more insistent 
demand for efficient action and control over the local authorities. 
Where conditions permit, we should therefore give preference to a 
system in which the single official head will be given more power 
while the board will be made advisory. Some one head must be 
supreme in school administration as in any other business enter- 
prise of large proportions. 

The Illinois Superintendent. — In Illinois a State Superintendent 
of Public Instruction is elected by the people for four years. His 
powers and duties are to keep general records of reports of local 
school officers and other documents relating to the school system, 
supervise all the common and public schools of the State; advise 
the county superintendents as to conduct of schools, construction 
of schoolhouses and methods of securing competent teachers; re- 
port annually to the Governor, make general rules and regulations 
for the execution of the school laws, give legal advice to school 
officers, hear and determine controversies arising under the school 
laws of the State when appealed from a county superintendent, 
grant teachers' certificates, visit such charitable institutions of 
the State as are educational in character, prescribe forms for 
reports, require reports from county superintendents and local 
boards under penalty of forfeiture of the State appropriation to 
schools in such districts and require reports from heads of public 
educational institutions within the State. 

The Massachusetts Board. — In Massachusetts a Board of Educa- 
tion consisting of the Governor, Lieutenant Governor and eight 
other persons appointed by the Governor by and with the advice 
and consent of the Council for eight years, exercises the general 
control of the Commonwealth over its public schools. The place oi 
a superintendent is taken by the Secretary oi the Board, who is 
paid, the members of the board being unpaid. The board, or under 
its direction, the Secretary, requires reports from local beards, 
preserves records, makes a detailed report on condition o\ the 
schools, suggests improvements to the Legislature, visits as often 
as possible the different parts oi the commonwealth for the purpose 
of arousing and guiding public sentiment in relation to education, 
appoints agents to visit the schools in towns and cities, manages 
the State norma! schools, holds Summer schools for teachers, directs 
examinations for teachers' certificates, manages the school fund of 



402 THE NEW AMERICAN GOVERNMENT 

the State and distributes the State appropriation to various towns 
for school purposes. 

Local Authorities. — Each county has its own superintendent of 
schools who watches over the local district boards and reports 
to the State authority on their condition. In some States he also 
issues local teaching certificates and holds an annual teachers' 
institute for the purpose of stimulating and inspiring the instruct- 
ing staff. The county is divided into school districts with an 
elected local board in each district; these boards choose the teachers, 
manage the school property and generally administer educational 
affairs; they have also the power of taxation for school purposes, 
and when necessary they may sell bonds to build new school- 
houses, etc. The entire control over higher education including 
colleges, universities and all bodies which grant degrees, is exer- 
cised by the central State authorities, either through a State board 
or a special Council. These latter determine when an educational 
institution shall have the degree-granting power, and recommend or 
oppose the granting of charters of incorporation to new institutions 
by the Secretary of State. 

New Problems. — The States are now wrestling with two new 
problems of unusual importance and interest: 

How to make the Universities and Colleges of greater public 
service and usefulness. 

How to offer some vocational training in the elementary and 
high schools, in order to fit them more closely to the needs of the 
people. 

The work of making our Universities more serviceable is one 
that deserves the greatest care and attention of the State. A Uni- 
versity represents an investment of 10 to 50 millions or even more, 
and requires for its ordinary expenses and additions, from one-half 
to three millions yearly. How can these funds be made most 
productive to the community? In the past our higher institutions 
have done a great work in offering the best scientific and cultural 
education to those few who could afford to take the complete pre- 
scribed groups of courses. They have aimed chiefly to equip the 
leaders of thought and action. In this field they have rendered 
an invaluable service. The question now arises — can they not also 
widen their sphere of usefulness to include more of that vast 
multitude which we call "the people" and which is abundantly 
more able to furnish leaders than are the leisure classes? Another 
newer question presses still more insistently — ought the University 
to fix its attention solely upon the production of leaders? Can it 
not offer some of its facilities to those of the masses who are able 
to profit by them? Can it not even adapt its courses, relax some 
of its rigid groups of subjects and rearrange its methods so as to 
bring to all who can grasp and .use them, some of those immense 
stores of inherited and acquired knowledge which would be of 
inestimable value to the plain common man who has never dreamed 



THE STATE 403 

of being a leader? We have already seen how high the scientific 
researches and attainments of the University can reach — we have 
still to find how broad can be its public usefulness. 

University Extension. — Because of the strong popular movement 
in the Western States the University question has received more 
attention there, and in Wisconsin particularly the widest develop- 
ment of the new idea has occurred. Here the University as a 
State institution is supported mainly by public funds and aims 
to meet the broadest public needs. Certain features of its work 
have been noticeably successful. 1 

1. An Extension Department reaches the homes, the farms, the 
shops and factories of the people. Extension classes with lecturers 
from the University staff, correspondence courses, demonstrations 
and conferences, have opened up countless new opportunities for 
practical study and the work of "sending the University to the 
people" has been carried on with such vigor and success that all 
classes feel a direct interest. President Van Hise has pointed out 
that scientific knowledge has grown far more rapidly than the 
means of spreading it; the people are being left behind. We have 
accumulated a great store of information, of practical and scientific 
principles and other useful knowledge, but it is in the keeping of 
scientists and experts and has not been made available to the 
masses of the people. The Wisconsin idea is to open up this fund 
of helpful knowledge to the immediate use of the community. In 
the correspondence division there are over five thousand students 
with a hundred members of the faculty taking part in instruction. 
Fifty-seven local classes have been organized, and are visited by the 
professors from time to time. The Extension department has 
sought to gather in a number of other activities which could be 
helped by a close union with the University. Among these are: 

The Municipal Reference Bureau, which answers questions on 
city and village problems, 

The Anti-Tuberculosis Campaign with conferences, exhibits, etc. 

The Lecture Bureau, which has three organization extension 
centers in Milwaukee, Oshkosh, and Lacrosse. 

2. The noteworthy fanning work oi the University, Nowhere 
has there been such a careful and successful study o\ the agricultural 
needs of the State and such a remarkable fitting of new courses to 
these needs. The lumber and farming interests oi Wisconsin have 
been foremost among her resources. The University Agricultural 
Department looking decades ahead, lias seen that no modern, 
growing commonwealth can long depend upon timber as its chief 

or even as a leading industry. Accordingly the central feature oi 
1 It should be clearly understood thai in choosing principally the University 

of Wisconsin and in it principally the extension courses for discussion at this 
point, it is intended not to criticise nor ignore other courses nor other institu- 
tions, but rather to show by a single example what can be and is being done to 
increase the dividend paid to the people by the University investment 



404 THE NEW AMERICAN GOVERNMENT 

the system of popular teaching is agriculture and its allied branches, 
especially dairying. Here again the foresight of the authorities has 
proved itself, for dairying was an undeveloped latent resource of the 
State. Courses in the selection, breeding and care of cattle, butter- 
making, cheese-making, and the by-products of the creamery, have 
been offered and have steadily grown in value and importance 
until Wisconsin already ranks second in the Union as a dairy State. 
To reach this end a special short course of six weeks was established 
to which all farmers are admitted, and which offers in condensed 
form the most practical sides of the subject only, and is given at a 
time of the year when the largest numbers can attend. Great 
tracts of land formerly unused, are now devoted to dairying and in 
effect a new industry has been created which adds no little to the 
prosperity of the State. In other branches of farming, a large 
number of new crops have been introduced both by the scientific 
researches of the Faculty and by the practical treatment of the 
subject in the class room; new methods of cultivation and of 
marketing have been worked up, the correspondence courses have 
been supplemented by frequent tours by members of the Faculty, 
all sections of the State are covered and the work of informing, 
stimulating and educating the agricultural interests of the com- 
munity is so systematically and thoroughly done that the Wisconsin 
farmer looks as naturally and habitually to the University for 
scientific guidance as does a steel mill to its testing department. 
Similar efforts are being made to open up the University's facilities 
to the commercial and industrial interests of the State; the corre- 
spondence division offers a large number of business courses while 
in the general College studies such as literature, history, current 
events, the physical sciences, etc., the student is provided with 
correspondence work and local classes under University direction. 

In short what the University possesses has been made available 
to all who can use it. In line with this same tendency is the low 
tuition fee now charged to residents of the State in all the Western 
State institutions, which makes it easy for those who can afford the 
time to pursue a course of study in residence. The same desire has 
led many municipalities in all sections to provide city colleges in 
which the needs of the larger number of students will be better 
served, both by lower rates of tuition and by new courses of greater 
practical benefit. Two excellent examples of this are seen in the 
University of Cincinnati and City College in New York. The 
success which these local institutions are winning is rapidly chang- 
ing our views of the possibilities of higher education. 

3. The active participation of university men in the public 
service of the State. The State of Wisconsin makes extensive use of 
scientific services of experts. From the University alone it has 
drawn forty-six men who are employed both by the State govern- 
ment and as members of the faculty, while it has taken very many 
more into the permanent public service. This has meant much to 



THE STATE 405 

both University and State administration, it has increased the 
practical knowledge and breadth of vision of the teacher and en- 
abled the public administration to attack and successfully solve 
problems that would otherwise have defied solution. The gain has 
been mutual, but the State has profited more. The work of the 
experts, both in law making and administration has been construc- 
tive. Whether it be the framing of a just tax measure, the regula- 
tion of the services of public utilities, or the drafting of a safety act, 
the aim of the expert is always to secure a practical, workable plan; 
he has no desire to punish anyone, no political vengeance to satisfy; 
his concern is to find and use the experience of other legislatures and 
adapt it, with all the skill at his command, to local conditions. 
Accordingly the popular confidence in, and public use of scientific 
help are growing in those commonwealths where it has been tried. 
In Germany for several decades this plan has been followed with 
such success that it is now an established feature of both the impe- 
rial and State governments. 

University Funds. — In order to carry on an extensive plan of 
popular education, an institution must be backed by ample re- 
sources. All the Western colleges have been fortunate in having a 
part of the public land fund reserved for their use, and, as a part 
of the State government each receives a goodly appropriation from 
the legislature. Several have gone even further and have had set 
aside for them by the State constitution a certain portion of the 
State taxes. This has been done in Illinois with marked improve- 
ment of the University's usefulness. In Wisconsin the three- 
eighths mill tax which is permanently devoted to the University 
from the proceeds of general property taxation in the State by the 
Act of 1905, is not changed from session to session of the legislature, 
but is a permanent continuing appropriation. Seven-tenths of a 
mill are devoted to the common school maintenance and one-sixth 
to normal schools. Such a method places at the disposal of the 
University a large income which can be relied upon for its future 
plans. Of this system Dr. McCarthy in the Wisconsin Idea, 
says, — "This does not mean thai the legislature cannot modify the 
plans of the University at any time, but it docs mean established 
continuity. The wisdom of this is shown by the fact that some of 
the universities and educational institutions oi the country have 
been in a turmoil of strife because under the so-called budget system 
their appropriations end every two years. They are helpless under 
the attacks of politicians and have no way to plan ahead. Freedom 
of speech in the university might have been seriously impaired 

recently had a minority of the legislature had the power to withhold 
appropriations for the university. It is evident that, if the legisla- 
ture every two years passes upon the entire appropriation for an 

existing institution, a small minority oi one house is able to threaten 
Or block an institution so that it cannot extend to its fullest useful- 



406 THE NEW AMERICAN GOVERNMENT 

We have dwelt with emphasis upon the work of a particular 
University, because it has been a pioneer type, opening up new 
vistas and possibilities from which all can profit. The service 
rendered by the University to the people of Wisconsin is inestim- 
able. The institution has served as the center of intellectual life 
as a matter of course, but its influence has gone far beyond this, it 
has become a prime means of guiding business and social progress 
along feasible, practical channels. Much of the energy usually 
devoted to progress in all lines is wasted because of chimerical 
plans which are worked out, propagated and abandoned, and be- 
cause of the useless friction and conflicts between forces which 
would be harmonious if properly guided. The University has been 
a leader in the preparation and dissemination of scientific methods, 
and more than any other single force, it has guided the development 
of the State into constructive channels rather than mere destructive 
agitations. Yet even constructive progress means a change, and 
necessarily this has aroused searching criticism and at times violent 
opposition from those who were opposed to all change, of no matter 
what nature. 1 

Vocational Training. — The more we use machines in industry the 
more we create a sharp difference between skilled and unskilled 
work. This is true from the humblest manual laborer to the highest 
business executive. The machine intensifies a thousand times the 
natural differences between men, in intelligence, education, skill, 
foresight, and opportunities. It not only makes the modern dis- 
tinction between employer and workman but it also creates strong 
differences and even conflicts of interest between different classes of 
workmen and raises new questions of policy and divisions of opinion 
among the laborers themselves. One of the most noticeable of these 
distinctions is between those who are expert in some craft and those 

1 Says Dr. McCarthy on this point: 

"During many years of legislative work the writer has found the members of 
the legislature glad indeed to confer with the expert professor and ask his advice, 
be it on a question of tuberculosis, the chemistry of gas or the regulation of 
monopoly. Such professors are often reviled and censured as endangering the 
life of the university — accused of throwing it into politics — but never in all that 
time has the author heard a single comment involving the names of professors 
who were engaged as well-paid experts by private corporations. No comments 
were made when a man connected with the university law school, for instance, 
was registered as the 'counsel before the legislature for all public service corpora- 
tions,' and yet at the same time other men whose advice was sought by legisla- 
tors were attacked fiercely because of unpaid toil. Many attorneys and scien- 
tists of both types have been before the legislature but there has been no criticism 
of the former class; indeed they deserved none, as they were all men of high 
standing and rendered good service before the legislature, for which they were 
well paid by private parties. 

"If the legislature may not secure expert service save that paid for by private 
interests, it will never reach the scientific basis of these great questions now 
before us, which must be solved by the aid of the expert's technical knowledge. 
The university should not be blamed for having men upon whom the legislature 
may call for advice." 



THE STATE 407 

who possess no such skill or training. This difference shows itself 
above all in the pay envelope. The unskilled laborer seldom re- 
ceives more than $1.50 or $2.00 per day in spite of the most stren- 
uous efforts of the union, because he competes with millions of his 
own kind, and the supply is unlimited. The Mergenthaler linotype 
operator in the printing trade receives from $25 to $35 weekly and 
even more, and the supply of skilled men is small and the demand 
growing. In still other industries machines reduce the men who 
operate them to the ranks of automatons, who can do one narrow, 
restricted piece of work and that only. As this operation can be 
learned readily and requires little intelligence the workman who 
performs it is easily replaceable and is necessarily paid as an un- 
skilled laborer. So we find ordinary textile mill operatives tending 
machines for from $6.00 to $10.00 weekly while the highly skilled 
mechanics who make the machines are paid double or treble that 
rate. The men and girls who make yarns and thread are no better 
than day laborers; the weavers who make fabrics from the same 
yarn are skilled workmen with wages of $20 per week. Nor is the 
situation otherwise in the higher rounds of work. Machinery has 
so extended the output that the successful producer now turns out a 
large amount of product with a small profit on each article — making 
up by his immense aggregate what he loses by his lower margin of 
gain per unit. This means that in the factory he must have superin- 
tendent, assistant managers, foremen and skilled workmen of a 
higher grade of intelligence to discover and introduce new econ- 
omies, while the rest of his laborers are often of low grade in both 
training and pay. In his sales force he must market the greater 
output through a well-paid travelling staff, while in the executive 
offices he must have as his assistants men whose vision, judgment 
and native ability will cover the field of State, national and even 
international markets. This demand for high class men has come 
from large output and large output is the product of the machine. 
All of these facts show that neither in the grimy shop nor in the 
brass railed office is there high reward for the unskilled "average 
man." The farm offers him no better chance, for it is on the farm 
that those remarkable new methods, the product of chemical 
laboratory, experiment station and scientific text-book, have made 
such revolutionary progress in the last two decades. The business 
of farming is now an applied science. Wherever we look we find 
the line between the skilled and the untrained being so sharply 
drawn in all vocations that the conclusion is clear -the community 
must use every means in its power to provide a vocational education 
for all who will take it. Such a work is needed because of the great 
numbers of people whose welfare is involved, while the sums ex- 
pended are more than doubly returned to the community by the 
greater effectiveness and sueeess oi the businesses concerned. The 
movement for vocational schooling has advanced rapidly in the 
last few years and all the more progressive Commonwealths are now 



408 THE NEW AMERICAN GOVERNMENT 

taking steps to provide the groundwork for a future system oi 
industrial and agricultural training. 

The Open Road. — Such training is the only means by which we 
can preserve "the open road" of opportunity for all classes, so that 
men and women can come up out of the lowest to the highest 
positions in industry, business and public life. It is only this policy 
of "the open road" that stands between us and Socialism. When 
it is no longer open to the masses of the people, when in their 
minds an insuperable barrier has been raised to block them from 
the opportunities of acquiring wealth, pleasure, culture and the 
pursuit of happiness, the belief in Socialism as a last desperate 
expedient waxes strong. Industrial education provides the way to 
gain that knowledge which is power, in a country like our own. 
It is in proportion to the opportunity for securing such education 
that the workman and the clerk and the salesgirl, are able to escape 
from the routine of drudgery, by making themselves more valuable 
to the enterprises in which they are employed and by opening up 
opportunities for advancement. In doing so they escape also the 
discontent which surrounds the monotony of routine work. From 
the viewpoint of business, such education is especially needed at 
this time. The more the force of labor concentrates its attention 
upon its grievances, and attempts by artificial means to force up 
wages and reduce hours, the less the productivity of our business 
enterprises. Industrial Education is the best solution yet proposed 
for the difficulties which are constantly arising between employer 
and workman. 

Industrial Education. — The two States which have led in the 
movement to offer a thorough technical training along industrial 
lines are Massachusetts and Wisconsin. Massachusetts has pro- 
vided that any local board may establish an industrial school 
with thorough technical courses, and may secure State aid amount- 
ing to one-half its expenses, by complying with the requirements 
of the State Board of Education. After an inquiry into the ad- 
vantages of part time instruction to persons employed in factories 
and shops a system of part time courses has also been tried and 
found to reach a large number of people with satisfactory results. 
The State board has helped the movement by issuing a set of uni- 
form rules as to the organization of industrial schools, the course 
of study and the methods of instruction which are necessary to 
obtain the State appropriation. There have also been started in 
various parts of the State a number of elementary trade schools 
which offer the rudiments of technical education. At Worcester 
a system of part time courses has recently been established by which 
apprentice boys in the machine trade spend four hours weekly in 
school, pursuing English, shop computations, drawing and shop 
practice. The classes are held during a part of the working day in 
time paid for by the employer. The Fitchburg High School plan 
is especially notable and is described later. 



THE STATE 409 

In Wisconsin also, rapid progress has been made and a com- 
plete plan of such education established. A Commission investi- 
gated this subject and reported in 191 1 in favor of a continuation 
system, — "That as soon as school facilities can be provided for 
children between 14 and 16 years of age already in industry, they 
be compelled to go to school a specified time each week; that this 
time shall be expended as far as possible in industrial training; and 
that the hours of labor for such children shall not exceed eight 
hours per day for six days of each week, which time shall include 
the time spent by each student in vocational schools." 

This program is being carried out by a series of laws which offer 
to Wisconsin the most complete and thorough system of industrial 
education of any State in the Union. Some of the important 
features of these laws are: 

(a) A local school board may establish a trade school and levy 
a tax of three-tenths of a mill per dollar for this purpose. 

(b) The apprenticeship laws of the State are amended to require 
that every apprentice shall receive instruction of at least five 
hours weekly, which shall include English, Citizenship, Business 
Practice, Physiology and Hygiene, the use of Safety Devices, and 
other branches to be approved by the State Board of Industrial 
Education. 

(c) Whenever a suitable evening school or continuation class of 
industrial courses has been established in a community for minors 
between the ages of 14 and 16, all children of that age who do not 
otherwise attend school, shall do so for not less than five hours 
weekly for six months in each year, and employers are required 
to allow a corresponding reduction in hours of work. 

(d) The salaries of teachers in technical schools are placed upon 
a reasonable plane by the State requirement that the minimum 
be $60 per month. 

(e) An important departure has been made by establishing a 
separate organization of school authorities to control the industrial 
courses. This consists of a State Board of Industrial Education, 
and in every town, city or village of over 5,000 inhabitants there 
must be, while in places of less size there may be, a local board of 
Industrial Education, which shall manage the industrial, commer- 
cial, continuation and evening schools. This board is composed oi 
the local Superintendent of Schools, two employers and two em- 
ployes. The four latter are appointed by the local school hoard, 
and serve without pay. State aid is given to industrial schools 
only with the approval of the local school board, ami appropria- 
tions by local authorities must also have their approval; whenever 
twenty-live persons qualified to attend an industrial, commercial 
or continuation school, file a petition with the local Hoard o\ Educa- 
tion, such Board must establish the facilities required by the Act 
In New York State the Act oi [908 provided for industrial schools; 
later it was broadened to include agriculture, mechanic art- and 



41 THE NEW AMERICAN GOVERNMENT 

home-making. The State department of education has drafted 
outlines of courses in a wide range of vocational studies. There 
are already 35 industrial and trade schools with 145 teachers, 
3,300 day pupils and 2,900 evening students. The State has also 
provided industrial training for teachers in three of the normal 
schools and teachers' courses for mechanics who wish to become 
instructors. 

The Richards Report. — Dr. Charles R. Richards in his report to 
the National Bureau of Education on this subject, gives an ad- 
mirable summary of the various types of industrial schools designed 
to meet the special needs of each class in the population, as follows: 

"The institutions that at present occupy an important place 
in industrial training in this country are the intermediate industrial 
or preparatory trade schools, the trade school, the evening school, 
the part-time school, and the corporation or apprenticeship school. 
The economic factors involved in the conduct of these institutions 
are of two kinds: First, the expense of plant, operation, and cost 
of materials; and second, the matter of expense involved in at- 
tendance on the part of the student. 

"The first-mentioned school is a comparatively new type of 
institution aiming to reach some of the large number of boys and 
girls that leave the elementary school at 14 years of age, and to 
supply a training that will give them a better equipment to enter 
industrial life at 16. Such schools take their students at an age when 
the question of wages is not so generally important as later on, and 
when many parents are willing to support their children at school 
for one or two years if convinced that practical benefits will follow. 
There are at present in Massachusetts and New York some 10 or 
12 of these schools devoted to the woodworking, electrical, book- 
binding, printing, and machine trades. 

"Taking into account the practical benefits afforded by such 
schools and the possibilities of attendance by a considerable number 
of boys and girls well fitted to become industrial wage-earners, and 
the not prohibitive cost for large communities, it is probable that 
such schools will become an important factor in industrial education 
in towns with large manufacturing interests and over 50,000 popu- 
lation, and that in time they will reach a considerable fraction of 
those boys and girls that now leave school at the end of the com- 
pulsory school period. From the character of training required 
and the close articulation with the elementary school, it is apparent 
that such schools are best fitted for administration by public- 
school authorities. 

"The trade school, taking youths at 16 years of age or over, and 
furnishing a training to take the place in whole or in part of the 
apprenticeship system, is an institution which labors under the 
severest economic difficulties, whether considered from the side 
of maintenance or expense of attendance. Figures from schools 
now in operation indicate a grade of expense that obviously makes 



THE STATE 411 

such institutions prohibitive for any except large cities, representing 
exceptional specialization and concentration of industries; and even 
in such cities it is too early to prophesy that the results obtained 
will be permanently considered in proportion to the expense. 

" Evening schools represent the first form of industrial education 
in this country, and they reach to-day by far the largest number of 
individuals under instruction in this field. As a means of supple- 
mentary instruction in mathematics, science, drawing, and technical 
subjects, they present a simple and effective method of industrial 
education, at least for young men above, say, 18 years of age, 
Taking the young worker after the wage hours of a day are closed, 
such schools and classes represent the most easily available form of 
industrial education for the great mass of young workingmen and 
the simplest types from the standpoint of organization. Practical 
evening classes which afford an opportunity to broaden the shop 
experience of the day stand in the same relation to the workers, 
but they offer a more severe problem in expense of administration. 

" Evening continuation schools were for half a century the back- 
bone of the German system of industrial education. To-day that 
country is coming to a realization that for students between 14 and 
18 the evening is not the best time for instruction, and she is bringing 
the work of her continuation schools into the day period. It will 
naturally require a considerable time for this country to reach the 
same point and to bring about a general agreement among man- 
ufacturers to allow learners in their establishments to attend in- 
dustrial improvement schools during working hours. The positive 
benefits that result when such a plan is followed, and the close 
correlation that is made between the work of the shop and that of 
the class room, have, however, been so strikingly shown that this 
system of industrial education deserves to be increasingly studied 
by both employers and schoolmen. When the time for attendance 
upon the school work is granted to apprentices or other learners 
by employers and the wages continued during this period, the eco- 
nomic problem for the boy is solved, and inasmuch as the public 
school is not called upon to supply the costly equipment for practical 
work, but only that instruction specifically fitted to the technical 
needs of the learners, the administration expense is reduced to a 
minimum." 

The Cincinnati and Fitchburg Plans. — One of the central prob- 
lems in industrial education is the question when shall school 
sessions be held? This is in fact the main question, for most of 
the older boys and young men who wish to take the courses are 
prevented from doing so by their hours of employment. The public 
school authorities have tried to meet this difficulty in various ways. 
The best solution is the Cincinnati University and the Fitchburg 
High School plan. Dr. Herman Schneider of the University oi 
Cincinnati School of Engineering, has developed for that institution 
a plan of co operation with the manufacturers and business men 



412 THE NEW AMERICAN GOVERNMENT 

of the city, by which the engineering students devote a period to 
college training in the class room and then a similar period to shop 
work in the factories and mills of Cincinnati. Their shop work is 
supervised by members of the faculty and their class work is made 
to include a discussion of all the principles which they have applied 
in practice in the shops. In this way the University has been 
freed from the heavy expense of establishing its own mechanical 
shops while the students have the inestimable benefit of practical 
work, to complete and fill out their study of principles. This 
idea has been applied in successful form to the high school in Fitch- 
burg, Massachusetts, by Professor W. B. Hunter. A number of 
the large manufacturers of the city agreed to co-operate with the 
high school and to allow students from the second, third and fourth 
years of the high school industrial department, to alternate weekly 
between the establishments and the school. In the first year of 
the course, the boys spend their entire time in the school, pursuing 
the usual English branches. In the second year the manufacturers 
take the boys in pairs, so that by alternating, one of the pair is 
always at work in the shop, and one in the school. Each Saturday 
morning the boy who has been at school that week goes to the shop 
in order to get hold of the job his mate is working on, and be ready 
to take it up Monday morning when the shop boy goes into school 
for a week. Shop work consists of instructions in all the operations 
necessary to the particular trade. Boys receive pay for the time 
they are at work in the shops at the following rates: 
First shop year ioc an hour 

Second shop year nc an hour 

Third shop year i2^c an hour 

These rates are higher than were formerly paid to apprentices in 
the same shops, as the manufacturers of their own accord have 
raised the wage. Professor Hunter, from whose publications and 
reports this description is taken, has found that the system offers 
a strong inducement to boys to continue in school. They can earn 
some money, in fact more than they could by taking ordinary places 
in stores or offices. Again, many parents cannot afford to keep their 
children in school under the usual conditions. The Fitchburg plan 
allows the boys an opportunity to earn their education. A strong 
feature of the plan is the agreement entered into between the boy's 
parents and his employer. It is in substance an apprentice's 
agreement, and allows the boy a trial period of two months in which 
to satisfy himself that he really wants to learn a trade, and that he 
has selected the right one. If the boy is apprenticed the manu- 
facturer then agrees that he shall remain as an apprentice for three 
years under the above-described arrangement. The subjects taught 
in the school are English, Mathematics, from elementary arith- 
metic, through Algebra and Geometry, but adapted closely in all 
cases to the practical needs of the shpp, Freehand Drawing, Physics, 
Mechanism of Machines, Chemistry, Commerical Geography, 



THE STATE 413 

First Aid to the Injured, Civics and Current Events. In drawing 
up the study course, Professor Hunter has cast aside all tradition 
and attempted to build a curriculum which will meet the exact 
needs of a special class of boys. The interest of the students has 
been maintained throughout their course, and they are enthusiastic 
and industrious. The plan has been in existence for only five years, 
and it is therefore too early to judge of its final results, but it 
seems to offer a complete, practical solution of one important side 
of the question. 

The Massachusetts Report. — As to our future policy in industrial 
schools an admirable program has been given in the "Conclusions 
Based On Experience" of the 75th Report of the Massachusetts 
Board of Education. Chief among these conclusions are: 

1. If the regular local boards are to control the new vocational 
schools, there must be an advisory committee of persons directly 
engaged in industrial work, to give the benefit of their experience 
to the local board. 

2. It is advisable for most communities, especially the smaller 
ones, to establish the new courses on a small scale, enlarging the 
facilities only after experience shows in which direction growth is 
natural. The best plan to start with is the evening course. 

3. The all-day course for boys and girls may include many gen- 
eral and even so-called "culture" subjects, with advantage, but 
the evening course for mature persons should be composed of short 
subjects or sections of subjects of an immediately practical nature, 
such as blue-print reading for plumbers, stair-building for car- 
penters, sleeve-making for dress-makers; the work should be so 
arranged as to promote directly the wage-earning power; the mature 
worker who attends an evening course, as a rule, does not profit 
by the more general subjects. 

4. A combination of schooling in class with factory or shop work 
is essential to the best results, because it offers a basis of practical 
experience for the teaching in class; it also reaches those who are 
to follow the vocation in question and accordingly fits their needs. 
The same principle applies with special force to farming instruction. 

Growth of the Vocational Idea. — The whole movement for in- 
dustrial training shows in an interesting way the many stages 
through which an idea struggles to ascendancy in American govern- 
ment. Originally a few enthusiasts who were ridiculed for their 
radicalism started the movement. For many years it was ignored; 
at times it was absorbed by the general manual training movement 
from which, however, it has now become distinct and separate. 
The labor unions at first paid little or no attention to the new idea 
ami the large manufacturers regarded it as a plan involving too 
remote benefits to deserve support. It was not until Massachusetts, 
the pioneer in so man)' meritorious services oi the State, had in- 
vestigated and approved the principle, that business men began 
to recognize its wonderful possibilities. The idea has had to depend 



414 THE NE W AMERICAN GOVERNMENT 

chiefly upon the activities of local trade bodies and manufacturers* 
associations. Once it obtained headway, however, it has spread 
with suprising rapidity in all the manufacturing States. A few 
of the more progressive labor union leaders have come out strongly 
in favor of it, and in 1908 a Committee was appointed by the 
American Federation of Labor, under the chairmanship of John 
Mitchell, to investigate the subject. Its report marks an epoch 
in the attitude of the labor union and strongly favors the technical 
education idea. 1 

1 "The inquiries of the committee seem to indicate that if the American work- 
man is to maintain a high standard of efficiency, the boys and girls of the coun- 
try must have an opportunity to acquire educated hands and brains, such as 
may enable them to earn a living in a self-selected vocation and acquire an 
intelligent understanding of the duties of good citizenship. 

"No better investment can be made by taxpayers than to give every youth 
an opportunity to secure such an education. Such an opportunity is not now 
within the reach of the great majority of the children of the wage-workers. The 
present system is inadequate and unsatisfactory. Only a small fraction of the 
children who enter the lower grades continue through the grades until they 
complete the high school course. The reasons which seem to be the prime cause 
for withdrawal are first, a lack of interest on the part of the pupils; and secondly, 
on the part of the parents, and a dissatisfaction that the schools do not offer 
instruction of a more practical character. The pupils become tired of the work 
they have in hand and see nothing more inviting in the grades ahead. They are 
conscious of powers, passions, and tastes which the school does not recognize. 
They long to grasp things with their own hands and test the strength of mate- 
rials and the magnitude of forces. 

" Owing to past methods and influences, false views and absurd notions possess 
the minds of too many of our youths, which cause them to shun work at the 
trades and to seek the office or store as much more genteel and fitting. This 
silly notion has been shaken by the healthy influence of unions, and will be 
entirely eradicated if industrial training becomes a part of our school system, and 
in consequence of this system of training the youth will advance greatly in 
general intelligence, as well as in technical skill and in mental and moral worth, 
he will be a better citizen and a better man, and will be more valuable to society 
and to the country." 

A corresponding investigation was also made by the National Association of 
Manufacturers which in 19 10 received from a special committee on Industrial 
Education a comprehensive report on the subject, strongly favoring all the 
various types of schools which have been described above. The Committee 
advocated, — 

(a) The establishment of evening schools for training in common educational 
branches, and for special skill and shop practice in the mechanical trades. 

(b) Half day schooling each week for apprentices, the employer to pay for 
this time. 

(c) A part time system, with a double set of apprentices on the Fitchburg 
basis. 

The Committee points out that in all of these extension schools the fact that 
the young man was earning some wages would make it possible for many to 
extend their schooling who are now deprived of the opportunity. "All who are 
able to take the full course would, however, command higher wages at the end 
of the course." 

Especially interesting and noteworthy is the Committee's report on Indus- 
trial Education for girls. 

"The aim in the industrial education of girls must be a double aim, viz., 
preparation for the girl's occupation for immediate self-support and her prepara- 
tion for home life in all its departments. 



THE STATE 415 

Agricultural Education. — Both State and National governments 
are showing great willingness to promote the farmer's interest in 
education and an extensive series of courses have already been 
established with success. The aims of this work are : 

(a) To make the farmer more successful in his business, 

(b) To render farm life more attractive and increase its social 
pleasures and usefulness, 

(c) To fit the young women of farming communities for the 
management of their homes and keep them in touch with the 
intellectual progress of their day. 

We may see the popular need and demand for this instruction 
from the extent which it has reached. In the lower grades, agricul- 
ture is taught in all the common schools of 12 States, in only the 
country schools of 5 States, and is required for teachers' certificates 
in 16. State aid is already given to agricultural courses in high 
schools in 12 States. Higher courses are given in the agricultural 
colleges of 31 States and a majority of these also give "short 
courses" ranging from 2 to 12 weeks for adults. Fifty agricultural 
colleges in the various States are now receiving $25,000 each yearly 
from Congress for the promotion of agricultural training and many 
of these also wisely offer courses of training for teachers. Good 
examples of the State's effort to strengthen its agricultural work 
are seen in the laws of South Dakota and North Carolina, which 
provide for special county farm schools. Whenever a county is 
willing to undertake such expense the State contributes $2,500 
yearly to the maintenance of the school. The courses provided 
include practical farm and housekeeping work and high school sub- 
jects. The buildings, courses and plant are under the management 
of a separate board of trustees. 

Newer Problems.— Besides the two questions of greater Uni- 
versity usefulness and vocational training which the States are 

"These two aims must be kept in proper balance. Any system of industrial 
education for girls will be inadequate that does not provide for both aims. 

"Your committee therefore conceives that the desirable consideration in 
regard to girls is the promotion of independent industrial schools so planned that 
the duplex needs may be secured, and that special effort should be made to 
advance the science and the skill in cooking and housekeeping. 

"First. Hy the establishment of day industrial schools for girls whose main 
need is to prepare for industrial wage-earning pursuits. 1 Hiring this preparation 
for a trade however, considerable domestic training is a necessary pan of the 
course. 

"Second. Courses for girls who wish to take as a vocation complete and 
thorough training in any or all branches of domestic science, housekeeping, ami 
management of the home in all its branches. 

"Third. And possibly part-time schools for girls who are already engaged in 
wage-earning pursuits in the less skilled occupations. 

"Fourth. Evening classes for women who are employed in the trades who 
wish to advance themselves; and also for trade workers who wish to prepare for 
teaching in industrial schools. 

"Fifth. Evening classes for women and girls who wish to become better 

housekeepers." 



41 6 THE NEW AMERICAN GOVERNMENT 

now in a fair way to solve, there is a third problem upon which little 
or nothing has as yet been done, — the arrangement of existing 
means of education so as to secure better co-operation and "team- 
work." This change is especially needed in the field of higher 
education where the waste of energy and resources is prodigal. The 
entire section East of the Mississippi is dotted with small institu- 
tions of higher learning, each with a handful of students, each 
struggling with an underpaid faculty and inferior facilities to keep 
its head above the waves of financial embarrassment and calling on 
its faithful alumni to make additional sacrifices in order that it 
may not fall behind its nearest competitor, and each finally in 
despair turning to its church board, or the Rockefeller foundation, 
or the State treasury, to make good the growing deficit. It would 
be difficult to overestimate the public service which these little 
institutions have performed in the past, but the growth of new 
subjects, the high cost of new equipment, and the increasing ex- 
pense of education have placed them at such a serious disadvantage 
as to impair or destroy their usefulness. Is it now time to unite 
more closely these scattered resources? If many of these academies, 
colleges and "universities" could be closed up, or combined to 
form strong, vigorous, effective bodies, instead of the cause of 
education losing thereby, the students would be far better taught, 
the teachers better paid, the libraries, collections and equipment 
more complete and the general tone of all raised to a higher plane. 
Finally a fourth task is now appearing before our educational 
authorities with attractive possibilities, — the work of devoting in- 
dividual attention to the needs of each student. Heretofore we 
have used typical American factory methods of production on a 
large scale, whenever the number of students required it. All have 
been put through a "mill" and have come out hall-marked as from 
a die. It is still possible to tell at first acquaintance the recent 
graduates of some colleges by the stamp which the institutions have 
placed upon their habits of mind. The same is true of many public 
schools. Those of our large cities, forced to handle much greater 
numbers than can be trained by the limited facilities at their com- 
mand, must resort to wholesale methods, treating each pupil as a 
number rather than a person. 1 Nor have we considered the future 

1 An investigation in a New York High School reveals some interesting facts 
on the need of greater individual attention for school children. This investiga- 
tion by Dr. C. W. Crampton was based on a classification of high school boys 
according to their physical maturity. It showed a greater variation in physical 
advancement than in years. The boys were classified as : 

First, those having arrived at puberty, — postpubescent; 

Second, boys approaching maturity, — pubescent. 

Third, boys not yet approaching maturity, — prepubescent. 
They had all passed the work in the lower grades satisfactorily but in the high 
school only the most advanced did well. Few of the almost mature and none of 
the immature boys survived the strenuous high school work. From this Dr. 
Allen in his work on Civics and Health concludes that "physiological age, 
not calendar years or grammar school months, should determine the studies and 



THE STATE 417 

careers of those who are in school, to offer them guidance and 
information in the choice of their vocations. The parents have 
had to make this decision, without further knowledge than their 
familiarity with the child's superficial likes and dislikes. That the 
parents' choice has not been an enlightened one is shown by the 
large proportion of misfits in business and the professions and 
trades. The great salient fact in this situation is that the State is 
not helping its people to find and use their best opportunities. 
There is needed in both schools and colleges some means of studying 
more closely the abilities, temperament and natural bent of each 
student, of setting before him and his parents the opportunities, the 
work to be done and the rewards to be gained in the group of call- 
ings for which he seems best fitted. A beginning has been made in 
the Vocational Bureau of the Boston schools, originated and di- 
rected by Mr. Meyer Bloomfield, other cities are rapidly following 
the precedent set by Boston and sporadic efforts are put forth 
in the colleges by individual faculty members; but this is a field in 
which general co-operation and exchange of experience would be 
especially useful and the benefits of a State-aided plan would far 
outweigh its trifling expense. We need as a part of every school 
system a department of vocational advice, with a trained expert at 
the State capital, working under the Superintendent and directing 
the local departments. Such a system would increase many fold 
the usefulness and value of our public schools. 

REFERENCES 

Report of State Superintendent. See especially also the Massachusetts, New 
York and Wisconsin Reports. 

A Summary of School Laiv. Usually published and distributed by the State 
School Board or Superintendent. 

C. A. McCarthy: The Wisconsin Idea. 

Annual Proceedings Industrial Education Association. 

C. R. Richards: Special Report to U. S. Bureau of Education on Industrial 
Training. 

C. A. Herrick : Commercial Education. 

Industrial Education: Jan., 1909, volume, The Annals of The American 
Academy. 

W. B. Hunter: The Fitchburg Plan. A pamphlet description issued by 
Prof. Hunter. 

Current Reports on Agricultural and Industrial Training may be found in the 
annual reports of the If. S. Secretary of Agriculture and the Commissioner of 
Education. 

1 1 \k t and McLaughlin: Cyclopedia of American Governm 

o'Lkaky and Prosser: Vocational Education References, Bulletin on Legisla- 
tion lor Vocational Education, U. s. Bureau of Education, 1015. 

QUESTIONS 
1. At a public meeting called to discuss school taxes the following argument 

is advanced in an effort to reduce school expenses: (a) The State and local 

the companions of children alter the tenth year. Physiological strength and 
vitality, not ability to spell or to remember dates, should be the basis of grading 
for play and study and companionship among younger children." 



418 THE NEW AMERICAN GOVERNMENT 

governments are overburdened with school charges, — "schooling" is a matter 
for those who can afford it, — let every one take as much as he can pay for in 
private institutions; (b) there are too many "fads" in education. Let every 
one be given the good old-fashioned "three r's" without the many additional 
"trimmings" that have been loaded on to our school system, — if the old system 
were maintained, school expenses would be materially reduced. What would be 
your attitude toward each of these arguments and how would you express it? 

2. Give some idea as to the extent of the public school system and its 
expenses. 

3. In your State how much is paid by the State treasury and how much by 
the local districts? 

4. Is the individual spending a longer or a shorter time in school than 
formerly and how does this affect the kind of studies taught and the educational 
work of the State as a whole? 

5. Outline the general plan of subsidy system followed in most of the 
States. 

6. Explain the New York system and its advantages. 

7. Explain the usual organization of the county school system. 

8. How are colleges and universities being made more useful to all classes of 
people? 

9. Outline the Wisconsin idea and explain why it was adopted in that 
State. 

10. Why have the Western universities been able to charge lower fees than 
those of the East? 

1 1 . How does a constitutional provision of a certain proportion of taxes for 
the University benefit the institution? 

12. Resolved that the Wisconsin plan of university finances should be 
adopted in this State. Defend either side. 

13. What is meant by vocational training and why has it become popular? 

14. What is your view as to the advisability of vocational training in the 
public schools? 

1 5 . Explain the Massachu setts system of industrial training. 

16. The Wisconsin system. Show the chief differences between the two 
systems. 

1 7 . Report on the system in your State. 

18. Prepare a short essay on the subject of industrial training and include in 
it an outline of the various types of school required in a State system. 

19. Outline the Fitchburg High School plan. What do you consider its 
advantages? 

20. What are the views of manufacturers and labor unionists on industrial 
education? 

21. Explain the purposes of State and national aid for agricultural educa- 
tion. 

22. How do the States grant this aid? 

23. What does the National Government do towards this end? 

24. A meeting of representatives of the alumni of a number of small colleges 
in the central States is held to discuss the advisability of combination, on ac- 
count of great financial deficits. What would be your stand on this question and 
why? Should the State support these colleges? 

25. Explain the necessity for greater individual attention to school pupils 
and what can be done in this field. 



CHAPTER XXI 

THE STATE— Continued 
HEALTH, CHARITIES AND CORRECTION 

Health and the State. — The germ theory has greatly broadened 
and enlarged the usefulness of the State. So long as people believed 
that disease was a " humor" in the blood, to be cured by drugs, 
there was little to be done except to wait until a malady appeared 
and then cure it. But with the germ theory there has come a new 
idea and a new department of medical work — that of detecting and 
destroying the disease bacillus. With this change we have passed 
from the remedial to the preventive policy. But prevention is a 
gigantic task which far exceeds the resources of the individual; it 
means community action. We now expect our State governments 
to establish a healthful environment for all classes and to keep our 
streets, offices and schools as free from unsafe conditions as possible. 
This means that State activity in health affairs is multiplied one 
hundred fold. While the germ theory is a discovery of medical 
science, its effects upon government are most striking. 

The progress of science now urges our States and cities to conduct 
thorough and exhaustive investigations of all forms of disease; 

To maintain laboratories of hygiene; 

To establish a systematic medical inspection of schools and 
other public institutions; 

To enforce vaccination; 

To inspect tenements, factories, sweatshops, etc. ; 

To disinfect dwellings; 

To establish sanatoriums for consumptives, open air and recrea- 
tion grounds for all classes; 

And to maintain a reasonable standard of purity in foods and 
drugs and accomplish scores of other tasks, all directed towards the 
one great aim of providing a sanitary environment. Most of these 
new duties have fallen upon the local governments, and these 
bodies are supervised by a central State office. Another result of 
the germ theory has been the determination oi the people to make 
public health a matter o{ general, not purely local, concern. The 
active passage and interchange of persons and goods between all 
parts of the commonwealth has made it imperative that some 
central authority l>e established to watch over the physical welfare 
of the entire Stale. Such a plan has been successfully adopted In- 
most of the commonwealths. 

The State Board. The central body is fast becoming the strong- 

410 



420 THE NEW AMERICAN GOVERNMENT 

est single force in the fight for a higher health standard. It is 
usually composed of six to ten members appointed by the Governor, 
the majority being physicians. Its duties and powers are: 

Suppression of epidemics and widespread contagious diseases; for 
this purpose an emergency fund of several thousand dollars is 
placed at the disposal of the Board; 

Investigation of diseases and their causes; 

Vital Statistics; 

Power to act as a local board of health in those districts where no 
local board exists; 

Power to assist and encourage the existing local boards. 

As the State Board usually meets only at certain periods or in 
case of emergency, its continuous work is assigned to a paid secre- 
tary who devotes all of his time to such duties. Under the direction 
of the board and its secretary is a corps of special agents, chemists, 
inspectors and local district physicians. The board also maintains a 
central laboratory in which its chemists conduct analyses and 
investigations, while the inspectors examine on the spot and report 
to the board any local conditions which the board directs. 

New Problems of Health Administration. — Prominent among the 
questions confronting the State authorities are: 

(a) The creation of pure water supplies; 

(b) Purity of foods, beverages and drugs; 

(c) The campaign against tuberculosis; 

(d) The important administrative question — what shall be the 
powers of the central authority? 

(a) The Water Supply. — Every large town and city in the United 
States either has already before it or is about to face the problem of 
pure drinking water. The universal nature of the demand has 
raised this question to the front rank. The problem is a peculiarly 
difficult one because of the rapid increase of small towns and cities 
which require a municipal supply but cannot afford an expensive 
plant. Again, the sources of pollution in the supply of any town are 
usually beyond the limits of the town itself and are not subject to 
its jurisdiction or control. This in itself is enough to warrant State 
supervision and protection. The central State authorities are now 
trying to stop the widespread practice of emptying sewage into 
streams which form the necessary source of supply for other com- 
munities. With the exception of Massachusetts, none of the States 
enforce vigorously and effectively the laws prohibiting this cus- 
tom — an administrative weakness which costs the lives of thou- 
sands each year. The laws of Massachusetts not only forbid pollu- 
tion of water-supply streams and ponds, whether through sewage or 
otherwise, but they also authorize the officials of any town, city or of 
any water or ice company to bring a complaint before the State 
board, setting forth the cause of such pollution. The board, after a 
public hearing, may order the causes removed. As no appropriation 
is made for this purpose, however, the State board is obliged to 



THE STATE 42 1 

make its regulations and rely upon local boards for their enforce- 
ment. 

These provisions give the Massachusetts board some means of 
protecting the water supplies of the State against the more open 
sources of impurity, but it is in its advisory capacity that the 
board exerts a more typical influence. No town is authorized to 
provide for a new water supply or sewerage system without first 
consulting the State Board of Health. Since in Massachusetts most 
of the plans for local sewerage and water supply require the au- 
thorization of the State legislature, the latter body would usually 
refuse to allow a change which did not meet with the approval of 
the State board. 1 

1 The Massachusetts Act of 1886 and 1888 "To Protect the Purity of Inland 
Waters," etc., provides as follows: — 

An Act to Protect the Purity of Inland Waters, and to Require Consultation with 
the State Board of Health Regarding the Establishment of Systems of Water-supply, 
Drainage and Sewerage. 

Sec. 1. The state board of health shall have the general oversight and care 
of all inland waters, and shall be furnished with maps, plans and documents 
suitable for this purpose, and records of all its doings in relation thereto shall 
be kept. It may employ such engineers and clerks and other assistants as it 
may deem necessary; provided, that no contracts or other acts which involve 
the payment of money from the treasury of the Commonwealth shall be made or 
done without an appropriation expressly made therefor by the general court. 
It shall annually on or before the tenth day of January report to the general 
court its doings in the preceding year, and at the same time submit estimates of 
the sums required to meet the expenses of said board in relation to the care and 
oversight of inland waters for the ensuing year, and it shall also recommend 
legislation and suitable plans for such systems of main sewers as it may deem 
necessary for the preservation of the public health, and for the purification and 
prevention of the pollution of the ponds, streams and inland waters of the 
Commonwealth. 

Sec. 2. Said board shall from time to time, as it may deem expedient, cause 
examinations of the said waters to be made for the purpose of ascertaining 
whether the same are adapted for use as sources of domestic water-supplies or 
are in a condition likely to impair the interests of the public or persons lawfully 
using the same, or imperil the public health. It shall recommend measures for 
prevention of the pollution of such waters, and for the removal of substances and 
causes of every kind which may be liable to cause pollution thereof, in order to 
protect and develop the rights and property of the commonwealth therein and 
to protect the public health. It shall have authority to conduct experiments to 
determine the best practicable methods of purification of drainage and sewage 
and disposal of the same. For the purposes aforesaid it may employ such 
expert assistance as may be necessary. 

See. 3, It shall from time to time consult with and advise the authorities of 
eilies and towns, or with corporations, firms or individuals, either already hav- 
ing or intending to introduce systems of water-supply, drainage or sewerage, as 
to the most appropriate source of disposing of their drainage or sewerage, having 
regard to the present and prospective needs and interest o\ other cities, towns, 
corporations, linns or individuals which may be affected thereby. It shall also 
from time to time consult with and advise persons or corporations engaged or 

intending to engage in any manufacturing or other business, drainage or sewage 

which may i ad to cause the pollution o\ any inland waters, as to the best 
practicable method of preventing such pollution by the interception, disposal or 

purification of such drainage or sewage; provided, that no person shall be com- 
pelled to bear the expense of such consultation or ad\ ice, or of experiments made 



422 THE NEW AMERICAN GOVERNMENT 

In Pennsylvania, where conditions of highly developed manufac- 
tures and dense population also prevail, the State board of health 
has for years advocated the establishment of a force of "river 
wardens" under the direction of the board, to police the water 
supply of the entire State; but the recommendations of the Board 
have thus far been ignored by the legislature. This appears to be 
the only permanent, satisfactory solution of the problem since 
pollution becomes every year more extensive and dangerous. 

(b) Food Inspection. — The use of fraudulent or harmful food 
adulterants and preservatives has become a question of deep popular 
interest as we saw in considering the National power to regulate 
commerce. Unfortunately the practice has not been confined to 
luxuries and delicacies. Since it is the poor especially who demand 
a cheap diet, adulteration and harmful preservatives are most prev- 
alent in the ordinary necessities of the table, such as meat, salt, 
sugar, milk, butter, flour, meal, canned and preserved fruits and 
vegetables. Every manufactured article of common food and drink 
is now extensively adulterated. It will also be apparent that the 
evil falls heavily upon that class which is least able to protect itself. 
In view of such conditions, the National Government has adopted 
the law of 1906 already described and the States have begun to 
enact similar measures. The laws now in force are of two general 
kinds: First, those aimed to prevent fraud, though permitting the 
sale of harmless substitutes if plainly marked; and second, those 
intended to eliminate injurious adulteration and preservatives, of 
all kinds. 

Under the first class of laws, for example, are those regulating 
the manufacture and sale of oleomargarine. This substance is not 
considered harmful; it is claimed to be cleaner than butter and 
is certainly much cheaper. The sale of oleomargarine as butter, 
having reached a point where it threatened to displace the genuine 
article, the various farmers' associations of the country began an 
active crusade against the new product. In response to this move- 
ment several States provided that oleomargarine must be sold as 
such. Dealers were required to be licensed, the packages to be 
plainly marked, and the use of coloring matter to imitate butter 

for the purposes of this act. All such authorities, corporations, firms and 
individuals are hereby required to give notice to said board of their intentions in 
the premises, and to submit for its advice outlines of their proposed plans or 
schemes in relation to water-supply and disposal of drainage and sewage, and all 
petitions to the legislature for authority to introduce a system of water-supply, 
drainage or sewerage shall be accompanied by a copy of the recommendation and 
advice of the said board thereon. Said board shall bring to the notice of the 
attorney-general all instances which may come to its knowledge of omission to 
comply with existing laws, respecting the pollution of water-supplies and inland 
waters, and shall annually report to the legislature any specific cases not covered 
by the provisions of existing laws, which in its opinion call for further legislation 
Sec. 4. In this act the term "drainage" refers to rainfall, surface and subsoil 
water only, and "sewage" refers to domestic and manufacturing filth and 
refuse. 



THE STATE 423 

was in some cases prohibited. Here the objection is not to the 
sale of the article in question, but to the fraud perpetrated when 
this article is artificially colored and sold as butter. 1 

Weights and Measures. — The Departments of Weights and 
Measures of many of the States are now awakening to their possi- 
bilities and are issuing illustrated pamphlets for housewives which 
contain valuable material on methods of reducing the cost of living 
and show what service the State may offer in this new field. The 
pamphlets give practical suggestions as to the kinds of scales to 
be used; the methods of avoiding short weight; the great advantage 
of buying in bulk rather than in package; the ordinary methods 
used by dishonest dealers and manufacturers to conceal weights 
and the immediate bearing which the whole problem has upon the 
family's outlay for provisions. The pamphlets are prepared in a 
popular style and are replete with pointed hints. 2 

Many of the State laws also require that the presence of certain 
dangerous drugs in a food or beverage or in a medicine must be 
stated on the label. These laws so far as they affect products 
brought from other States are subject to the general food and 

1 The same applies to manufactured vinegars, etc., many of which are harm- 
less preparations such as diluted acetic acid, but their sale as vinegar can no 
more be permitted than can other forms of fraud. 

2 The following example is taken from the Washington State publication: 

DO YOU KNOW 

That a Department of Weights and Measures for the State of Washington 
was created by the 1013 legislature? 

That every city of the first class and every county in the State are to have a 
sealer of Weights and Measures? 

That the county auditor is ex- officio sealer in his county? 

That it is the duty of the sealer to protect the honest dealer and the general 
public in the matter of honest weights and measures? 

That much depends upon you, Mr. or Mrs. Consumer, whether full weight and 
measure goes into the homes in Washington? 

That a careful study of this booklet will make you a valuable assistant to the 
Department of Weights and Measures? 

That every household should have an accurate scale and set of liquid measures 
that have been tested? 

That your city or county sealer, or the State Department of Weights and 
Measures at Olympia, Wash., will test and certify your scales and measures free 
of charge for you? 

That many cans and packages presumably containing a certain amount are 
far short of that amount? 

That in buying some package goods, which since the passage of the pure iood 
law have been gradually reduced in si/.e, you are paying a high price for paper 
wrappings and tin? 

That when dry commodities are sold in liquid capacity measures you are 
losing about 15 per cent? 

That there are approximately : \,ooo,ooo pounds of butter consumed in the 

State of Washington each year, and that a shortage of one ounce in each pound 

would mean a loss of approximately S.150,000.00 per year? 

That in the City of Seattle the department seized and confiscated over 4.000 
short measure milk bottles in the first two years o\ its existence, and that the 
shortage on these bottles alone more than equals the operating expense- oi the 

department? 



424 THE NEW AMERICAN GOVERNMENT 

drug laws of the Federal Government and may not conflict with 
the requirements of the latter. In McDermott v. Wisconsin, 228 
U. S. 115; 1913, the State claimed that its regulations governing 
the wholesale and retail sale of goods and the labels which must 
be placed upon them were valid, even when they did not coincide 
with the Federal regulation. It was claimed that while Congress 
had the control of interstate trade and original packages, this con- 
trol did not extend to the goods after the original package was 
broken, and the products displayed for sale at retail. The Supreme 
Court, however, upheld the Federal regulation and declared that 
the State rules for labelling were invalid when they conflicted with 
the former. The power of Congress to prevent the circulation in 
interstate trade of goods which were misbranded or injurious, was 
complete and absolute. The very purpose for which it was exerted 
would be defeated if a State could make other and different rules 
for the labelling of the packages. The purpose of Congress was to 
protect the consumer. Only the retail package and its label came 
under the consumer's eye. In order to make the Federal protection 
effective the method of labelling prescribed by Congress must 
be carried out, even on the retail package. This decision, while 
it establishes the supremacy of Federal regulation over articles 
brought in from other States, in no wise interferes with the proper 
authority of the State to control local manufacturers. Nor does 
it relax the standard of regulation since the Federal laws are far 
above the average standard of State legislation on this subject. 

Pure Food Laws. — The second class of laws, those directed 
towards the suppression of harmful adulterants and preservatives, 
is more important. The extension of the vegetable and fruit 
canning industries has been in the main beneficial but has brought 
with it the wholesale use of certain conserving compounds which 
are considered harmful by medical authorities. The use of these 
drugs, notably salicylic and boric acid, is now forbidden by several 
of the commonwealths, as are also certain coloring extracts be- 
cause of their injurious effects. 

The executive force employed to administer these laws is or- 
ganized under various authorities in different States. In Massa- 
chusetts the State Board of Health has been chosen, in Pennsyl- 
vania the Dairy and Food Commissioner of the Agricultural 
Department, in New York the Commissioner of Agriculture, in 
Illinois a special Food Department under its own Commissioner, 
with an additional Commission which fixes food standards. At 
the office of the central authority, in each case, there are located 
the necessary chemical laboratories, with a staff of expert analytical 
chemists, for the purpose of testing all products suspected of being 
manufactured or sold in violation of the law. In addition, a corps 
of inspectors is employed to traverse different sections of the State, 
particularly the manufacturing districts, and secure samples of 
food for analysis. These inspectors, acting as ordinary customers, 



THE STATE 425 

purchase from wholesalers or retailers the products towards which 
suspicion has been directed. The products are then carefully 
labelled and shipped to the State laboratories and tested, the 
results are notified to the inspectors and in case the law has been 
violated a criminal prosecution is commenced against the offending 
merchants and manufacturers. 

The heads of the State food bureaus and of the national bureau 
have formed a league known as the Association of State and Na- 
tional Food and Dairy Departments. They hold an annual meet- 
ing which has become a clearing house for the exchange of experien- 
ces and improved methods. At this meeting the results of chemical 
analyses are talked over, new forms of adulteration are brought 
to notice, proposed changes in national and State laws are considered 
and the ever-present problem of cheap substitutes is viewed from 
the practical standpoint of the administrator. 

Three important obstacles are encountered in the struggle for a 
firm administration of the law. The first is the difficulty of securing 
direct evidence against manufacturers. The purchase of a package 
of adulterated food stamped or marked with the name of the man- 
ufacturer is not conclusive legal proof that he is guilty of such adul- 
teration. On the other hand, the dealers will not voluntarily 
testify that the manufacturer produces adulterated articles. It 
has therefore been found necessary to prosecute the dealer first, 
and after obtaining a conviction, proceed against the manufacturer. 
This is especially true also of bottled soft drinks which are exten- 
sively adulterated. A second difficulty is presented by the large 
profits gained by adulteration. In oleomargarine for example, 
the manufacturing interests have naturally aided in the defence of 
retail dealers when the latter were prosecuted for violation of the 
law, and have quite frequently paid the fines of dealers who were 
convicted. The prosecution of food frauds must be carried on 
carefully, with the utmost vigor and upon a large scale, in order 
to make violations of the law unprofitable. 

Finally in certain manufacturing sections the support given the 
administration by the people themselves is only lukewarm. The 
ever-present demand for cheap food has already been mentioned; 
among the foreign-born population the lower standard of diet makes 
this a strong factor. In manufacturing districts like Massachusetts 
and Western Pennsylvania large numbers of the people prefer 
adulterated products on account oi the price. In some sections it 
is even difficult to secure the conviction of offenders, in a jury 
trial, because of the popular demand for adulterated foods or iood 
substitutes. None of these obstacles has proved insuperable, 
however, and both the standard o\ law making and the execution oi 
tin- laws have steadily risen in the last few years. The prominence 
given to the pure food crusade has been enhanced by the general 
revival of interest in matters of both individual and public health. 
How widespread and genuinely national is the question of \oO(\ 



mm 



426 THE NEW AMERICAN GOVERNMENT 

standards, may be seen from the fact that each new improvement in 
one State rapidly spreads to the others, that thirty-five States have 
already adopted the National Food and Drugs Act of 1906 in their 
legislation, that the State commissioners support each other with 
eagerness, and that each is constantly urged to renewed activity 
by pure food associations, local clubs and societies and even pure 
food journals, of which several have already sprung into existence. 
We are in the full flood tide of a national movement which promises 
to subside only after the entire food standards of the country 
have been permanently lifted to a higher level. The State might 
well extend its work in two different directions, first a further and 
more rigid suppression of dishonest practices, especially by the 
plainer marking of ingredients upon each package, and by a large 
increase in the inspecting force so that many provisions of the law 
which are now dormant might be strictly enforced; and second, 
the State might help the people by showing the amount and kind 
of nourishment contained in various classes of foods; it should 
conduct a general chemical study of food products or it should 
encourage such studies in University laboratories; above all it 
should publish and distribute a series of free pamphlets showing in a 
popular style the practical results of these studies. With every in- 
crease in the demand for cheap food and with every rise in food prices 
the importance of State action along this line becomes plainer. 1 

(c) The Tuberculosis Campaign. — It is in the fight against the 
chief cause of death that the State's usefulness shows the greatest 
possibilities. Consumption is curable and preventable. In both 
cure and prevention it is peculiarly subject to environment. The 
efforts of medical experts are accordingly aimed to cure those al- 
ready afflicted by placing them in open air camps and sanatoria, 
and if this is impossible, then by inducing them to change their 
diet to simple flesh-producing foods and securing as much fresh 
air as they can; while to prevent the spread of the disease the 
specialists urge the separation of those who have it, wherever 
possible, and the most widespread, universal dissemination of 
knowledge as to ventilation, exercise, foods and cleanliness. This 
maps out the work of the State. By a combination with the public 
forestry reserves there have been established State camps where 
at a low charge patients may take the out-door cure for several 
months, while for those who are unable to leave their own localities 
special hospitals, dispensaries and educational measures are pro- 
vided. Many State and city boards of health issue pamphlets 
of instruction free to the people and furnish to the newspapers 
material which is spread broadcast, so that a constant agitation 
among all classes is beginning to produce its results in the local 
mortality tables. But the greatest work remains to be done; emi- 

1 Some of the States regulate cold storage by requiring that food products 
must not be so kept for longer than a fixed period, and must be marked when 
offered for sale. 



THE STATE 457 

nent workers in the campaign are convinced that unless some specific 
medical cure is found for the malady, it would pay the State to offer 
free treatment in a large series of mountain and highland camps 
and to defray the cost of transportation to and from these camps 
for those who are unable to do so. By no other means can the rav- 
ages of this persistent and insidious disease be completely rooted out. 

(d) The Powers of the State Board. — Two widely differing solu- 
tions of this general problem have been evolved; the first or early 
Massachusetts plan is to make the central State board chiefly 
a bureau of information for the education of the people at large 
and for the assistance and encouragement of the local boards; 
under this system the State board has no control over the local 
bodies and its only direct executive powers of importance lie in the 
suppression of epidemics, care of the water supply and the food 
laws. The reasons for this are so typical of the whole Massachu- 
setts plan of administration as to deserve comment. The funda- 
mental idea is to spread information and then rely upon the natural 
capacity of the people and of the local bodies to adopt the results 
of the investigations made by the central board. The latter issues 
popular leaflets, circulars and reports, and acts generally as a clear- 
ing house for information desired by officials or individuals. Public 
health requires a continuous campaign of advertisement and educa- 
tion in order to insure a strong, active and enlightened popular 
opinion. While this is true of all branches of administration in a 
democracy, it applies with special force to sanitation because of 
the rapid scientific advances which are being made in hygiene and 
medicine. Another cause has favored an informative, educational, 
rather than a strong executive authority; the Massachusetts board 
was the first in the United States, it was called forth by a series 
of violent epidemics of contagious disease which raged over the 
country in the late sixties of the last century. These virulent out- 
breaks caused such great loss of life that public attention was 
centered upon the problem and the State board of 1869 was estab- 
lished, largely as an emergency measure to cope with the situation. 
But when the emergency had passed it was not considered necessary 
to confer upon the central board any authority over the local offi- 
cials and the State board to this day therefore possesses little con- 
trol except in case of epidemic or similar crisis. 

The Indiana Plan. — With the passage of time it has transpired 
that the original Massachusetts system does not meet the condi- 
tions of other States. It frequently occurs that the local township 
and city boards arc, to put it mildly, not qualified for their work. 
In some cases where dangerous diseases were in question, a policy 
of concealment has been followed, out o\ a mistaken idea oi local 
patriotism and the protection oi local business interests. In others 
the measures prescribed by the State* board to combat epidemics 
have not been followed or have been wilfully opposed ami defeated, 
while often the returns of vital statistics which should be made by 



428 THE NEW AMERICAN GOVERNMENT 

the local to the central board, have been omitted for~no apparent 
reason whatever. The local bodies have been able to defy the 
central authority in this way because of their complete legal in- 
dependence and the lamentable weakness of the State board. To 
cope with this situation the State of Indiana, by its health laws of 
1899 and succeeding years, explicitly provided that the local 
bodies, besides the usual functions mentioned in the law, shall 
"perform such other duties as may from time to time be required 
of them by the State Board of Health, pertaining to the health of 
the people." It is further provided that the local boards shall 
appoint executive health officers and, in order to establish firmly 
the authority of the central board of the State over these local 
officials, it is provided that, "The State Board of Health shall 
have power to remove at any time, any county, city or town health 
officer for intemperance, failure to collect vital statistics, obey 
rules and by-laws, keep records, make reports or answer letters 
of inquiry of said State board concerning the health of the people." 
Another section provides that, "The State Board of Health shall 
have supervision of the system of registration of births, deaths, 
and marriages." By these three important sections of the law the 
central board is placed in firm control of the sanitary adminis- 
tration of the entire State. Nor has this power been regarded as 
merely nominal; the board has exercised its full prerogatives and 
its activity has been welcomed by the local boards in many cases, 
because the latter have thereby been relieved of responsibility in 
matters which had become involved in political agitation or dis- 
pute. Indiana has also adopted the plan in vogue in some other 
States of holding an annual conference of all the local health officers 
for the exchange of ideas and for instruction in the latest advances 
in public hygiene. This conference lasts for two days, and is held 
in June for the officers from counties, cities and large towns and in 
December for those from smaller towns. Attendance is compul- 
sory and the expenses of officers are paid by the localities. The 
Indiana plan of establishing a more adequate control by the central 
over the local authorities has thus far proved successful and seems 
well adapted to the needs of most of the States. 

How Shall the Central Authority be Organized? — Much of the 
effectiveness of health administration has been lost because most 
of the States have adopted the board plan. In New York, instead 
of a board, there is a Department presided over by a single Com- 
missioner of Health who must be a physician of at least ten years' 
actual practice, appointed by the Governor. Under his direction 
are the Secretary, Medical Expert, Registrar of Vital Statistics, 
Director of the Bureau of Pathology and Bacteriology, Director 
of Chemistry, Director of Cancer Laboratory, Consulting Engineer, 
Consulting Ophthalmologist, Director of Anti-Toxin Laboratory, 
etc. The powers of the Commissioner are to make inquiries and 
investigations concerning causes of disease, especially epidemics, 



THE STATE 429 

the effect of localities, employment and other conditions upon 
public health, health statistics, etc.; he may approve or modify 
ordinances of a local board of health so far as they affect the public 
health beyond the jurisdiction of such local board; he exercises 
exclusive jurisdiction over all lands acquired by the State for sani- 
tary purposes, prescribes statistical methods for the various munic- 
ipalities, examines into nuisances, exercises powers of the local board 
of health where a municipal corporation fails to establish such board, 
appoints clerical and other assistants and subpoenas witnesses where 
necessary. 

This centralized plan is in accord with the latest experience in 
our municipal governments and is far more satisfactory than a 
collective body in all cases where rapidity of executive action is 
necessary. It has however been charged that the change was made 
in New York for political reasons, that a single Commissioner is 
apt to be more subservient politically than a Board and that the 
salary expenses are higher than under the board plan. In spite of 
these weighty objections, the New York system has worked satis- 
factorily, 1 and gives greater promise of efficiency. 

A New Public Health Policy. — In this whole struggle of the State 

1 In order to show the extensive range of duties of even a conservatively 
organized central health authority, the following list of powers of the Mas- 
sachusetts State Board of Health is appended; the asterisks denote important 
powers of a really executive character, the other powers being chiefly those of 
investigation, counsel and recommendation: — 

To watch over the health of the citizens of the Commonwealth, make investi- 
gations and inquiries as to the causes of disease, especially epidemics, the effects 
of localities, employments and other conditions on the public health and relative 
to the sale of drugs, food and their adulterations; publish necessary information 
for diffusion among the people, advise the government as to proper location and 
sanitary conditions of public institutions, have oversight of inland waters, 
produce and distribute anti-toxin and vaccine lymph, examine annually all 
main outlets of sewers and drainage of cities and towns and the effect of sewage 
disposals; make an annual report with the necessary recommendations; en- 
force* the laws relative to food and drug inspection and the inspection of liquors 
and beverages; publish the results of analyses of adulterated articles; investigate 
small-pox and other infectious diseases and consult thereon the local authorities; 
exercise co-ordinate powers with the Board of Health in every city and town; 
enforce* the laws prohibiting the sale of impure ice; compel* after a public 
hearing, the removal from the cities and towns of offensive trades, such as glue 
factories, bone-boiling and rendering establishments, etc.; establish regulations 
for the slaughter of swine;* examine the sources of water .supply of cities and 
towns; make* regulations to prevent the pollution of the same; appoint agents 
and experts to enforce the law regarding pollution; consult with and advise 
cities and towns, etc., relative to the establishment of a system of water supply 

and of drainage and sewerage. (All cities .and towns must submit plans to the 
State Hoard before making any change. Where legislation is required, the 
recommendation of the State Hoard is usually followed by the State Legisla- 
ture.) It may also hold pulm\- hearings regarding pollution, and order* its 

cessation; examine complaints as to contamination oi tidal waters a\u\ tlats 

and request the commissioners oi fish and game to prohibit the taking of shell 
fish from such waters; approve* the location oi crematories and regulate the 

same, and where necessary, restrict* the importation into the Slate of clothing 
manufactured under unhealthful conditions. 



43 O THE NEW AMERICAN GOVERNMENT 

to offer its people a more healthful environment there is now emerg- 
ing a choice of two policies, a parting of the ways. As Doctor 
Wm. H. Allen has shown in his Civics and Health, the public 
authorities may either take upon themselves the entire burden of 
creating the new environment of the people, which policy Dr. Allen 
calls, "doing things" or they may perform directly only what is 
necessary to establish a certain standard of health and then inspire 
the home, the church, the school, the civic society and the patriotic 
citizen in general, to do the rest, — this latter Dr. Allen calls, "get- 
ting things done." "Getting things done" is far better because it 
enlists the intelligence and the voluntary co-operation of all forces 
while the policy of doing everything directly by State agents often 
arouses opposition and does not stimulate that pre-eminently 
American quality of initiative, — it loses the benefit of team work 
and leaves latent and unused the potent force of self-help. As an 
example of the remarkable value of preventive public hygiene, 
Dr. Allen cites the results of the New York committee on physical 
welfare of school children. An investigation by physicians under 
the direction of this committee showed that 71% of the children 
examined had adenoids, — an easily removable deformity which 
invariably reflects itself in the backwardness, ill health, irritability 
or slothfulness of the child. The same investigation showed 48% 
of the children in rural schools to have defective vision. How shall 
these conditions be treated? Under the policy of "getting things 
done " by showing children and parents the facts and how to remedy 
them and, in a few instances, where necessary, by providing surgical 
assistance; under the policy of "doing things" by having school 
surgeons extract the adenoids and school opticians treat the eyes. 
The former is the educational plan. 

The committee found further that physical defects in public 
school children occurred frequently in the families of the wealthy as 
well as in those of the poor; that many types of physical weakness 
were apparently in no way connected with malnutrition but came 
from poor ventilation, or poor light, or bad teeth; that the families 
of native born required attention as much as those of immigrants. 
From these and other data gathered the committee drew a number 
of conclusions bearing directly upon the work of the public health 
authorities. A few of these only may be cited : — 

There is no evidence of physical deterioration of race stock, — on 
the contrary the vast majority of physical weaknesses noted were 
easily removed. 

Home and street environment were more responsible than poor 
nutrition, — free meals in schools would not essentially improve 
conditions. 

All classes of school children require attention, not only those of 
the poor. 

Parents can be relied on to correct the greater number of defects, 
if shown what steps to take. 



THE STATE 43 1 

Where parents are unable to pay for necessary treatment, private 
philanthropy or State action is necessary. 

Basing his proposals chiefly upon the conclusions of this com- 
mittee, Dr. Allen has worked out a plan by which the State, health 
and school authorities can develop and inspire general co-operation. 
Such a program possesses so marked an advantage over a general 
movement for free meals, free eyeglasses, free medical care, free 
relief in school, that an outline of it is presented here. Its principal 
features are: — 

A National bureau of health which shall gather and disseminate 
the facts among the communities of the United States and an active 
central State bureau of health in each commonwealth which will 
carry on the immediate work of educating, guiding, inspiring and, 
where necessary, compelling local co-operative effort. 1 

The State could work chiefly through the school with a clearing 
house of information to be maintained in each State, at the disposal 
of local authorities and those interested, a corps of State agents to 
make special inquiries and inspection of the school teaching of 
hygiene, a special instruction staff to carry on the propaganda 
among county superintendents, physicians, teachers, normal 
schools, etc. 

A bureau of experts to pass on the plans of every new school 
building. 

A county clearing house of information, a physician and nurse to 

1 "Five economic reasons are assigned for establishing a national department 
of health: 

"i. To enable society to increase the percentage of exceptional men of each 
degree, many of whom are now lost through preventable accidents, and also to 
increase the total population. 

" 2. To lessen the burden of unproductive years by increasing the average 
age at death. 

"3. To decrease the burden of death on the productive years by increasing 
the age at death. 

"4. To lessen the cost of sickness. Tt is estimated that if illness in the United 
States could be reduced one-third, nearly $500,000,000 would be saved annually. 

"5. To decrease the amounts spent on criminality that can be traced to over- 
crowded, unwholesome, and unhygienic environment. 

"Tn addition to the economic gain, the establishment of a national depart- 
ment of health would gradually but surely diminish much of the misery and 
suffering that cannot be measured by statistics, . . . 

"If progress is to be real and lasting, it must provide whatever bulwarks it 
can against death, sickness, misery, and ignorance; and in an organization such 
as a national department of health, adequately equipped, a vast preventive 
machine working ceaselessly, an attempt at least would be made to stanch 
those prodigal wastes of an old yet wastrel world. 

"Among the branches of the work proposed for the national bureau are the 

following: infant hygiene; health education in schools; sanitation; pure ioo<\; 
registration of physicians and surgeons; registration of drugs, druggists, and 
drug manufacturers; registration of institutions of public and private relief. 
correction, detention and residence; organic diseases; quarantine; immigration; 

labor conditions; tlissemin.il ing health information; research libraries and 

equipment; statistical clearing house for information." Allen, Ci\ 

P. lo.v 



432 THE NEW AMERICAN GOVERNMENT 

organize inspection and instruction in schools and to show officials 
and teachers how to interest parents in the physical welfare of 
school children. 

In each township an examining physician, and a record of the 
physical history of each child from the time of entrance to the 
school. 

In the city a special department of school hygiene with an officer 
giving his entire time to that work, a sub-committee on hygiene of 
the board of education; a local clearing house of information; a 
special examination of applicants for teachers' positions with 
reference to hygiene. A revision of the school curriculum to adapt 
it more closely to the needs of different physical classes of children; 
the supervision of indoor and outdoor playgrounds; a staff of 
examiners of children to ascertain, record and supervise the correc- 
tion of defects; a staff of nurses to assist medical examiners in 
demonstrations of cleanliness and proper care of health. 

Dr. Allen's program is here given somewhat fully because it is 
the most comprehensive, the sanest, and most feasible of the 
proposals made for the State care of health from a preventive 
standpoint. It is no exaggeration to say that this program, if 
carried out, — and it is slowly becoming the ideal of the more 
advanced States, — would remove the greater part of preventable 
diseases and defects and vastly simplify the whole public campaign 
for health. It has also the great merit of involving comparatively 
slight expenditure and little direct action by the State. It is in 
the main a stimulative, educational, and inspirational campaign, 
to which the school and public authorities would be readily 
adapted. 

Registered Professions. — The State laws require that in order to 
practice certain professions which affect the public safety and 
health, a State permit or license must be obtained. This permit is 
only granted after the authorities have ascertained the fitness and 
skill of the applicant. At first the health and medical authorities 
granted these permits but with the licensing of new professions 
additional boards of examiners, one for each profession, have been 
established. So we have boards which examine and issue permits 
for the practice of medicine, nursing, dentistry, embalming, phar- 
macy, etc. Each of these has extended the training necessary to 
pass the examination until each now requires a high degree of tech- 
nical proficiency which as a rule can only be acquired in a profes- 
sional school. Other professions have rapidly followed the same 
tendency, notably those which involve fiduciary and confidential 
relations such as certified public accountants, lawyers, etc. In all 
these callings it is impossible for the client to know fully the re- 
liability and skill of the professional man to whom his interests are 
intrusted. These interests are so important, even vital, that for the 
protection of the public the State must fix some minimum standard 
of honesty and efficiency which shall be satisfied by all the members 



THE STATE 433 

of the vocation. A further statement of recent legislation in this 
field is given in the Chapter on the Police Power. 

STATE CHARITIES AND CORRECTION 

New Methods of Work. — In examining the State's work in 
both health and schools, we saw that the recent growth of State 
power was due in each case to some new scientific idea, discovery 
or method. As this new idea gradually pervaded public opinion 
people began to see that its adoption required State action. This is 
peculiarly true of the field of charities and correction. The old 
idea of charity was to provide free soup for those who lined up at 
the door, or to gather them into the almshouse, — in short to relieve 
the immediate wants of the poor; the new thought is to help a family 
to regain its earning power. The old system produced a class of 
chronic dependents; the aim of the new is to remove the cause of 
dependence by cultivating self-support. But the modern method 
involves endless visiting, inspection and supervision. In our treat- 
ment of criminals and insane a like change has taken place; instead 
of the belief that all men are to be classed as either sane or demented, 
good or bad, we now recognize that no such sharp distinctions 
exist, but that it is a question of degree. Individual treatment may 
often overcome or remove the difficulty, but individual care means a 
reorganization of our system. We can no longer herd the insane 
and the criminal in pens like cattle as we formerly did, but we must 
apply modern methods and principles. The treatment of the 
criminal, the pauper and the insane has in short undergone a trans- 
forming evolution and in this growth the rule of the State govern- 
ment has necessarily become the vital influence. Again we have 
discovered that public charity and correction where left entirely to 
the local town or county have failed. Even the freedom until 
recently given to each reformatory, asylum, orphanage, hospital, 
almshouse and penitentiary to manage its own affairs, is no longer 
satisfactory; the State must set a standard of efficiency, as in the 
schools, and must see to it that the public institutions are kept 
well up to this standard. Meanwhile various private benevolent 
societies have begun to ask for subsidies from the State treasury, in 
order to cover their rapidly increasing deficits; this subsidy has 
been granted in many instances, but with it the State has asserted a 
right of inspection over the subsidized institutions. The State 
has become a regulator in this field as in so many others. Private 
hospitals, asylums, homes and other charities have, in many eases. 
Secured substantial grants of funds, but have thereby come under 
the supervision of the commonwealth authority. 

The Central Authority. This authority is variously constituted 
in different States. Three general types have evolved, first, the 
charities aid association; second, the super c:sc> v State char- 

ities; and third, the highly centralized board of control. 



434 THE NEW AMERICAN GOVERNMENT 

The Charities Aid Association is a private society of eminent and 
philanthropic citizens which has received from the State the right 
to visit, inspect and report on the conditions of penal, correctional 
and charitable institutions, but has no power of control whatsoever. 
The method pursued by such an association is to bring before the 
public a plain statement of what is being done and what should be 
done, relying on popular opinion to work out the necessary progress. 
In practice it has been found that many of the obstacles to progress 
arise from the want of knowledge of up-to-date methods on the 
part of local authorities rather than from any disinclination to 
keep up with the times. An annual State conference is therefore 
arranged as a general clearing house for information and exchange of 
views by the scattered officials all over the Commonwealth. The 
fundamental idea at the basis of this (New Jersey) system is, by the 
education of the individual wardens, superintendents and other 
officers to secure their voluntary adoption of better methods. 

The second or " supervisory board" plan has arisen chiefly from 
State appropriations to private charities. There must be some 
authority which will watch over these institutions and keep the 
legislature informed of the use to which the public moneys have 
been put. This is one of the first duties of the board. Again when 
a new institution applies for State aid, its merits must be inves- 
tigated. From these simple functions the scope of the board's 
activity has in many States been gradually enlarged. In the public 
institutions under its supervision the board may audit accounts and 
prescribe general rules governing the admission of inmates. It also 
acts as an advisory council recommending changes in methods of 
administration and in the laws. This system has been adopted in 
New York, Pennsylvania and a majority of other States. 

The third plan is that of centralization. The board's functions 
are not limited to inspection, but include the actual management of 
the charitable institutions, insane asylums and penitentiaries of the 
commonwealth. It appoints and discharges superintendents and 
employes, makes regulations, changes methods, purchases supplies 
and in every practical sense administers the charitable and penal 
establishments of the State. It has sometimes received powers 
of visitation and inspection in State universities, normal schools, 
colleges of agriculture, etc., and represents therefore by far the most 
advanced type of centralization in this field. South Dakota, 
Wyoming, Washington, Arizona, Kansas, Rhode Island, Iowa, 
Wisconsin, Minnesota and other States have adopted this general 
plan with individual modifications. This new system has been 
the subject of keen criticism for more than a decade and its inherent 
merits and defects still form the central problem in the field of 
State charity. 1 

1 Dr. Frederick H. Wines, former General Secretary of New Jersey State 
Charities Aid Association, in an annual report over a decade ago gave an ad- 
mirable summary of the case against the board of control system. 



THE STATE 435 

The strongest argument on behalf of the central control is found 
in the experience of the Iowa board. At the time of its creation in 
1898 the State institutions of Iowa were so disorganized that an 
investigating committee had been appointed and had reported, 
showing a condition bordering on chaos. To remedy this the board 
was established. The standard of efficiency has been raised in all 
institutions, regular visits are made at least twice each year, modern 
ideas have been introduced, purchases of supplies are made in 
quantity for all institutions and a material saving has been effected. 

The underlying idea of the extreme centralized system is the 
control of all institutions from a single center. Arbitrary as this 
sounds, its real character must depend on the men who compose 
the central board; should they be so disposed, they may administer 
the office in such a way as to make it a means of stimulating and 
developing the initiative of the various officers under their control. 
This seems to have been the policy of the Iowa board. Central 
control does not necessarily imply arbitrary action destroying the 
spontaneity of the individual subordinate; it may mean the highest 
development of the spirit of co-operation with the added advantage 
of a means of enforcing immediate action where this is required. 

The conclusion here must be the same as that reached regarding 
the central school authority of the State. Each style of board has 
its place in a certain set of conditions. The executive board of 
control represents the employment of specialists in a field where 
public opinion is not as yet well informed or active. The board of 
supervision and inspection, i. e., the " publicity" plan represents a 
simple effort to inform the people and the higher officials as to 

Two strong objections arc urged, first, political influence in the appointment of 
members of the board, superintendents of institutions and even wardens and 
subordinate employes; and second, the suppression of any individual initiative 
or originality on the part of these superintendents and wardens. 

Dr. Wines maintains that the plan has not been successfully operated in any 
large State long enough to justify its adoption and that such experience as has 
been obtained, leads to the inference that the two weaknesses just mentioned 
form an inseparable feature of the system. Political influence creeps into the 
administration because of the great power of appointment wielded by the 
central board of control. Wisconsin and Kansas are cited as instances where 
even the subordinate positions in State correctional and charitable institutions 
were filled by incompetents who possessed outside influence. In Iowa the re- 
sults of the control system are admitted to be most successful, but Dr. Wines 
contends that the experience in Iowa has been too short and the character of 
the men in control too exceptional to warrant any general conclusions favorable 
to the plan. 

On the score of the discouragement of individual thought and originality in 
the various institutions, the same author claims that the superintendents of 
St a to institutions are so subordinated to the board o\ control and so divested of 
all discretionary power that they cease to be an important factor for progress in 
their fields of work. They contribute little or nothing to the general discussion 
of social problems at the National Conferences of Charities. In view of these 

facts and oi some expert opinion against the board oi control. Dr. Wines con- 
cludes in favor of a St a to supervisory board without cont roll in-.', power. His 

opinion must be given mueh consideration, but the steady improvement in 

conditions under the central boards of control nukes the question a doubtful one. 



43 6 THE NEW AMERICAN GOVERNMENT 

actual conditions in the public institutions, relying on public opinion 
to compel the adoption and maintenance of an efficient standard, 
once the facts are made clear. This latter method presupposes a 
vigorous and highly intelligent public sentiment, on which the 
supervisory board can depend for action. 

The type of board or authority now needed is much influenced by 
the widespread attempts to raid the State treasuries for the benefit 
of thousands of small ineffective and badly managed private 
charities. "Charity" covers a multitude of sins including both 
waste and graft in flagrant form. It is a well-known practice for a 
group of physicians who are desirous of increasing their practice to 
found or reorganize a hospital for this purpose. Their friends aid 
in the worthy enterprise, the benevolent are invited to contribute, 
local pride, religious zeal and genuine public spirit are all exploited 
to the full limit in order to put and keep the " institution" on its 
legs, and then as a last resort the legislature is asked to cover the 
deficit. With the aid of political influence the attempt usually 
succeeds, and once on the list of State beneficiaries the hospital 
never lets go its grip nor ceases its demands for a larger subsidy. 
Is it well managed? Do its patients receive proper care? Could 
they be better and more reasonably treated at other better equipped 
institutions already in existence? What is the cost per patient per 
day? In brief, how much of the time, effort and money devoted to 
it is wasted and how much actually reaches the community in 
benefits? None of these questions is ever asked by the legislature. 
Nor is the hospital the only charitable spendthrift; the "home," the 
asylum, the reformatory, the refuge, the charitable school, the 
college — those which perform service and are meritorious charities 
and those which represent only faith and hope, and have not yet 
become charity, — all are included in the glad procession to the 
State treasury; even sectarian institutions which should not receive 
government support either because of their denominational control 
or the preference given to certain applicants for admission, are 
nevertheless "well heeled" politically and able to win their places 
on the favored list. A conservative estimate would place at 90 to 
100 millions of dollars, the amount annually wasted or improperly 
granted by the States to charitable institutions. Prominent physi- 
cians have repeatedly urged that the inhabitants of a State would be 
better off if nine-tenths of the hospitals were closed and a part of 
their funds devoted to the few well-managed institutions. In one 
commonwealth the managers of certain State-aided institutions 
refused to make the reports required by law from all those which 
received public funds, yet they were able to secure a renewal of the 
appropriation. In this whole situation which is ripe for a construc- 
tive reorganization, we apparently need the strong arm of an 
administrative charities bureau which can administer the public 
institutions and cope with the more aggressive and wasteful pri- 
vately managed concerns. Alongside this strong authority there 



THE STATE 437 

should also be the State Charities Association of benevolent public- 
spirited citizens, which should have only visitorial authority and 
whose chief function should be the work of informing and educating 
public sentiment. 

The New Jersey Plan. — The New Jersey State Charities Aid 
Association organized in 1886 " To promote the improvement of 
the mental, moral and physical condition of the inmates of all 
charitable and penal institutions in the State of New Jersey," is a 
private society composed of a small number of public-spirited and 
progressive citizens who have been authorized under the Act of 
1886, by the justices of the State Supreme Court, to visit and 
inspect most of the institutions in the State. The agents of the 
Association have no authority to order any changes in methods or to 
interfere in any way with the management of the institutions; yet 
they have brought about a complete transformation in the condi- 
tions of most of the jails, reformatories, asylums and almshouses 
throughout the Commonwealth, by making public reports of 
abuses and by pointing out the remedies needed. 

The New York Board. — The supervisory board plan is now in 
operation in most of the States. In New York a board of twelve 
members appointed by the Governor for eight years is authorized 
to visit, inspect and maintain general supervision of all institutions, 
societies or associations which are of a charitable, eleemosynary, 
correctional or reformatory character which have by law been 
placed under the board's supervision. 

The board's powers are: 

To aid in securing the just, humane and economic administration 
of such institutions. 

To advise the officers of such institutions in performance of their 
official duties, etc. 

To approve or disapprove organization and incorporation of 
new institutions which shall be subject to the supervision of the 
board. 

To establish rules for reception and retention of immates of 
institutions subject to the board. 

To approve building plans for institutions subject to the board. 

To modify treatment of inmates. 

To call attention of managers to defects in management. 

To license dispensaries. 

A fiscal supervisor is also authorized to maintain a cent ral super- 
vision over the finances of the more important public institutions. 
A State Charities Aid Association also exists and is authorized to 
visit and inspect asylums, prisons, almshouses and similar public 
institutions. It makes recommendations concerning the methods 
and management of such ins til 11 lions. 

In Pennsylvania there is a board oi five members, appointed 

by the Governor with the consent oi the Senate for five years. 

Through its general agent or personally by its members, it visits all 



43 8 THE NEW AMERICAN GOVERNMENT 

charitable and correctional institutions in the State at least once in 
each year; requires reports from various institutions in the State 
and from those of the several counties and townships; examines the 
finances of such institutions, their methods of instruction and 
management of their inmates, the official conduct of trustees and 
directors and other officers and employes, the conditions of the 
buildings, grounds and other property and all other matters per- 
taining to their usefulness and good management. The above 
provisions apply not only to State institutions, but also to those 
receiving State appropriations. The board, also through its general 
agent, visits and examines at least once in every two years, each city 
and county jail and almshouse for the similar purpose of inspection. 
Annual reports from jailers, wardens and executive officers must be 
made to the general agent of the Board. Institutions desiring State 
aid must give notice to the agent of the amount of the aid for which 
they propose to apply. The agent thereupon reports as to the 
advisability of such an appropriation. Refusal to give free access 
and necessary information or reports to the board is punishable by 
fine which may be collected by the general agent in the name of the 
board. The board may administer oaths in the course of its 
examinations. An annual report is made for the use of the legisla- 
ture. The Pennsylvania Board has never been "aggressive" in the 
use of these powers. A vigorous use of them is needed. 

The Wisconsin Plan. — In 1890 a central board of control of 
three members for the management and supervision of the State 
charity institutions was established. The various trustees which 
had administered these institutions were abolished; and the central 
board was given full authority. The other States which have 
adopted this plan have already been mentioned above. The latest 
example is that of Minnesota where in 1901 a law was passed which 
is typical of the most advanced form of control. 

The Minnesota Board meets the superintendents and other 
executive officers of each institution at regular conferences and 
considers the management of such institution. It may make 
recommendations for the improvement of management and may 
enforce the same. The Board fixes salaries, determines the number 
of employes in each institution, formulates rules and regulations for 
the duties of employes, keeps a complete and uniform system of 
accounts with each institution, makes a biennial report, institutes 
investigations, summons witnesses and directs the various executive 
officers and managers in the letting of contracts and the purchase of 
supplies. The more important institutions under the control of the 
board are the hospitals, asylums for the insane, the institute for 
defectives, the State training school for boys and girls, the State 
reformatory, the State prison and the finances of the State univer- 
sity, the State normal schools, the State public schools and the 
schools for the deaf and blind. The buildings of the last named 
educational institutions are in the future also to be constructed un- 



THE STATE 439 

der the direction of the board, but the educational policy is not 
subject to its control. 

Problems of Public Charity. — There are other difficult problems 
of State charity aside from the question of building an efficient 
organization to administer relief. But if such an administration 
could be established, to sift out and hold the best of the newer 
ideas and methods, to inspire the management of local institutions, 
to guide public opinion, to distribute the public funds economically 
among the deserving institutions of the commonwealth and to 
enforce a reasonable standard of service in each, the remaining 
tasks of State charity would be of minor importance. Among 
these are to be mentioned the care of such of the people as are 
rendered destitute by sudden and great economic changes like the 
invention of labor-saving machinery, which throw large numbers 
out of employment; or of natural catastrophes like the San Fran- 
cisco earthquake and the floods in the Ohio valley; and the special 
care of fatherless children in their own homes, etc., etc. All of these 
special cases except the last may readily be cared for by means of 
relief already in existence, but on the care of orphan children 
the opinion of many sociological experts is undergoing a change. 
The so-called pension plan is now being attempted, to avoid the 
necessity of placing fatherless children in homes and other large 
institutions. It is granted only to mothers who have children 
under the age of 14 years. The amount ranges from $9.00 to $r5.oo 
monthly for one child. In Pennsylvania it reaches $26.00 for three 
children, and $5.00 monthly for each additional child. The purpose 
of these acts is to preserve the family care of the children and to 
keep the home as a unit instead of distributing its members around 
among various charitable institutions. It has been estimated by 
sociologists that the State would aid fatherless children far better 
by using its funds to preserve the family, than by placing each 
child in a home or asylum where it would lack the parental care. 
Such laws have been passed in New Jersey, Wisconsin, Ohio, 
Minnesota, Michigan, Nebraska, New Hampshire, Oregon, Wash- 
ington, Utah, S. Dakota, Idaho and Pennsylvania. In many of the 
States the administration of the Act takes place through a central 
State Board; in others through local boards appointed in each 
county. 

REFERENCES— HEALTH AND THE STATE 

The A Hiatal Report of the State Board of Health. 

W. H. Allen: Civics and Health. 

I). II. Bergey: The Principles of Hygiene. 

The Public Health Movement, The Annals of the Academy, Matvli, ton. 

IT. N. Ogden : Rural Hygiene. 

A. C. Abbott: The Essentials of Successful Public Health Adm 
Journal Am. Med. Assn., Vol. XLVI, 1000. 

A. T. Cabolt: The State and its Part in the Fuberx ulosis Movement, 

C. Harrington: State Rights and National Health, Journal Am, Med. Assn^ 
Vol. L, iqoS. 



44° THE NEW AMERICAN GOVERNMENT 

QUESTIONS 

i. Explain how the germ theory of disease has increased the work of the 
State government and give some examples. 

2. How has it affected the division of power between the central and local 
authorities? 

3. Explain the usual organization and general powers of the central health 
authority. 

4. What is the form of central authority in your State? 

5. Which do you consider the most important health problems in State 
government to-day? 

6. Why is central supervision and regulation of local water supplies neces- 
sary? 

7. Outline the Massachusetts system of supply protection. 

8. How do the States regulate fraud in food production? 

9. Explain the practical value of the work of an active department of 
weights and measures. 

10. What does the department do in your State? 

11. Outline the usual provisions of a pure food law and the organization 
which administers it. 

12. Explain fully the practical obstacles encountered in the execution of 
these laws. 

13. What can the State do to prevent and cure tuberculosis? Ex- 
amples. 

14. Contrast the educational and the executive types of a central State 
board of health and give illustrations. 

15. A legislative committee is reorganizing the State health office in your 
commonwealth. Outline the plan of organization which you would favor and 
your reasons. 

16. In a large city it is proposed that the standard of health shall be imme- 
diately raised by an active campaign in the city schools. At a public meeting 
called to consider the question it is proposed that free eyeglasses, free lunches, 
free medical and surgical treatment, free dental care, and other free facilities 
be furnished by the city government to the school children in the school building. 
Explain fully whether you would favor this proposal or not, with reasons and 
examples. If opposed, what policy would you advocate and why? 

17. What are your impressions as to the wisdom of government compulsion 
in all matters of health? 

18. As to the possibility of relying wholly upon the voluntary action of the 
individual, after attempts have been made to educate him on health ques- 
tions? 

19. Give your impressions as to the desirability of a national board of health, 
with reasons. 

20. Outline and discuss the proposal for State and local health administra- 
tion advanced by Dr. Allen. 

2 1 . How much of this plan already exists in your State? 

22. Secure the views of a physician as to the wisdom and feasibility of the 
Allen plan. 

23. Explain the general system followed by your State in controlling the 
medical and allied professions. 



REFERENCES— CHARITIES AND CORRECTION 

Edward T. Devine: The Principles of Relief. 
Amos G. Warner: American Charities, Revised Edition. 
Annual Report of National Conference of Charities. 

Annual Report of the State Board; see especially the Boards of Control of Iowa 
and Wisconsin. 

The Survey Magazine, Weekly, New York City. 



THE STATE 44 1 

QUESTIONS 

i. Explain how the present methods and purposes of charity differ from 
those of former times. 

2. How and why has the treatment of criminals and insane changed? 

3. Do the changes above noted call for greater or less State work, and why? 

4. Prepare a report showing the organization and powers of your own 
State Board of Charities. 

5. Contrast the New York and Iowa central authorities. Contrast the 
New York and New Jersey authorities. 

6. Resolved that the "Central Board of Control" is the best plan of State 
administration for Public Charities. Defend either side. 

7. What should be the work of the central State authority? 

8. Resolved that all charitable institutions which appeal to the public for 
contributions should be under State supervision. Defend either side. 

9. Resolved that the present legislative methods of appropriating State 
funds to charities should be abandoned. Defend either side. 

10. Prepare a report showing what the State legislature should do as to 
funds for public charities. 

11. Resolved that the State should make no appropriations whatever to 
charities under private control, or sectarian management. Defend either side. 

12. Explain the Mother's Pension system. 

13. Secure from some experienced social worker a practical opinion on the 
pension system. 

14. Cite from the report of your State Board, its view of the distribution 
of State funds to privately managed charities. 



CHAPTER XXII 

THE STATE— Continued 
HIGHWAYS AND FINANCES 

Highways. — Roads are the very blood-vessels of the body- 
politic. Poor roads mean poor circulation, which in turn means 
stagnation. Of all the means that promote the growth of a na- 
tional spirit, few are so helpful as the active circulation of persons, 
ideas and merchandise between different sections of the country. 
The old notion that the roads of a locality were exclusively a matter 
of local concern, that it was for the people of each village or town- 
ship to decide whether their highways should be roads or trails 
and ruts, is akin to the former idea that health and education were 
purely local matters. The idea of a State interest in and State 
control of roads comes after the population has grown to some 
density; this point has been reached earlier in the Atlantic States, 
notably in Connecticut, New Jersey, and Massachusetts, than 
elsewhere. Others are fast adopting the Eastern plan. 

Certain main arteries are now generally conceded to be properly 
subject to exclusive State control, the more willingly conceded 
because the State thereby assumes the cost of construction and 
repairs. These form the so-called " State roads." But more 
recently a new movement has sprung up to relieve the local govern- 
ment of part of the burden of road expense. The idea of a subsidy 
from the State treasury, which was so successful in strengthening 
the local school system has been adopted here also. The Common- 
wealth contributes a certain fixed part of the cost of building new 
roads, the township or county raising the remainder by taxation or 
loans. In New Jersey a compromise has also been arranged be- 
tween the State, the township and the abutting property holders, 
each paying a fixed proportion. The amounts paid by the central 
treasury vary in different Commonwealths, from one-third in New 
Jersey to three-fourths in Connecticut. This subsidy grant is an 
open recognition of the economic and social interest which the 
people of the State as a whole have in the maintenance of free com- 
munication between all its parts. The acceptance of the subsidy 
is left to the option of the local governments but it has been the 
experience of all the States that the townships have accepted the 
provisions of the law with such eagerness as to exhaust the State 
appropriation and to require the establishment of a " waiting list." 

The keystone of the new system is a State Superintendent of 
Highways or a Board of Highway Commissioners. This officer or 

442 



THE STATE 443 

board investigates the road materials and possibilities of each 
region, prepares road-plans, employs engineers and superintends 
the allotment of the subsidy to the townships. The office is a 
means, in fact, the means of keeping road-building and maintenance 
up to date. 

As in the schools, so in road administration, only those localities 
whose highway plans conform to the standard fixed by the State 
commissioner, may receive assistance. This requirement uniformly 
means the construction of a macadam or other durable high-class 
road. The amounts appropriated by the States for this purpose 
have heretofore been small. In New Jersey 1,827 miles have been 
completed with State aid. The State subsidy, which is one-third 
of the total cost, was $3,650,000. Every county in the Common- 
wealth has availed itself of the State aid law. In Connecticut alone 
nearly 1,000 miles of roadway have been built at a total cost of 
$6,500,000 while 200 miles more are under construction. 

It is a popular error to suppose that a good road once built costs 
little to repair. They not only cost far more to construct but also 
as much or more to maintain than the ordinary mud road; their 
true economy to the taxpayer arises entirely from their greater 
usefulness and speed. They are always open for heavy traffic. 
The lower cost of transport for farm products or, differently ex- 
pressed, the greater productivity of the farm, must be reckoned in 
computing the cost and value of modern roads. Thus far only 
Pennsylvania has provided for a State subsidy for maintenance, 
one-tenth of the entire amount appropriated for roads being re- 
served for this purpose. The other States provide that the town- 
ships and counties shall keep all subsidized roads in repair. The 
best plan to enforce suitable maintenance by the localities is prob- 
ably that described under the Connecticut plan. 

Other States are following those already named in the adoption 
of a central control and subsidy plan and the system offers a 
valuable, practical means of hastening the new development of our 
agricultural regions. The objections urged against it are the in- 
creased burden of local taxation, the general preference of the 
farmers for the old system of "working out " road taxes which is 
interfered with by the new method, and the greater cost to the 
State treasury. 

No serious administrative difficulty has thus far arisen. The 
States are gradually increasing the powers of the State Commis- 
sioner and are authorizing him to purchase expensive machinery, to 
be let out to the towns. An apparent combination to maintain high 
prices, between the contractors furnishing gravel, crushed stone and 

Other road materials, may also force the State to construct its 

own stone-crushing outfits ami other plants necessary for the supply 

of road materials. The cost oi road-making has risen 20 

since the States began their present policy. A first-class macadam 

road, 10 feet wide and ; inches deep sometimes costs as high ft] 



444 THE NEW AMERICAN GOVERNMENT 

$10,000 per mile. A State crushing plant would probably reduce 
this cost in the long run. 

The New Jersey Plan. — The New Jersey system is one of the 
most highly developed of all the methods adopted. A State com- 
missioner of public roads, appointed by the Governor, enforces the 
laws. Improved roads are constructed jointly either by the State 
and the counties or by the State and the townships. Under the 
county aid act the State pays one-third, the county the remainder; 
under the township aid law, the abutting property holders 10%, 
the State 23^3%, and the township 66 2 / 3 %. In both cases the 
application of the owners of two-thirds of the lands abutting is 
necessary, as is also the consent of the board of freeholders in the 
county, or the township committee in the township, respectively. 
Privately owned turnpikes or toll-roads may be purchased upon 
the application of the owners of two-thirds of the abutting prop- 
erty. The State in this case pays a full third, the property holders 
ten per cent and the county the remainder. All new roads built 
under State subsidy acts are constructed under the direction of the 
State commissioner of roads, and are maintained and repaired by 
the counties and townships respectively. 

Connecticut. — In Connecticut also a State commissioner of 
highways, appointed by the Governor, administers the law. Im- 
proved roads are constructed jointly by the State and the towns, 
the town paying one-third the cost and the State two-thirds. If 
the town is small, having a property assessment list of less than one 
million dollars, the State pays three-fourths. The State subsidy is 
divided, while it lasts, proportionately among the towns making 
application by a certain date each year. Not more than $4,500 
may be expended on one town in any one year under the Act. The 
work of construction is carried on jointly by the town selectmen and 
the State highway commissioner. Maintenance and repairs are 
town affairs, but if the town neglects them, the highway commis- 
sioner may perform necessary duties and charge to the town. 

Constitutional Regulation of Finances. — All of the State consti- 
tutions have devoted much space to the limiting of the financial 
powers of the legislature. They set forth in much detail a long list 
of powers over which the legislatures shall exercise only the most 
restricted powers. The more important of these are : — 

Appropriations to charitable institutions; these must not be made 
for any denominational or sectarian purpose, and in some of the 
States they require a two-thirds vote of each House for their ap- 
proval. 

Each tax must be uniform; there must be no exemptions except 
the property actually used for religious and charitable purposes. 
Ordinary corporations may not have their property exempted from 
taxation, nor may corporation debts to the State be cancelled by 
any official. A surrender of the power to tax corporations is for- 
bidden. But a few of the States allow special exemptions by local 



THE STATE 445 

communities for manufacturing corporations for a limited time in 
order to induce them to settle in such localities. 

State debts are limited to certain purposes. An indebtedness 
which is contracted to cover a casual deficit in revenue must not ex- 
ceed a certain amount fixed in the State constitution. Larger 
amounts may be contracted to suppress insurrection or repel 
invasion. Few of the States have any large debts; some have 
none whatever. Massachusetts has $117,000,000; New York, 
$108,000,000; Pennsylvania has none. The larger State obligations 
usually represent productive enterprises such as canals, roads, etc., 
which are in the best sense dividend paying, and are not burdens 
upon future generations. Most of the limits on State debts were 
imposed by the constitutions adopted since the Civil War. They 
have had a marked effect in reducing State obligations, until recent 
years when the demand for expenditures on public works has again 
increased materially the debt of most of the States. 

Local debts; the debts of cities or communities, townships, school 
districts, etc., must not exceed a certain proportion of the value of 
their taxable property. This varies from 5% to 7%. But they may 
exceed this amount in borrowing funds for the purchase and opera- 
tion of public utilities, such as gas, water works, etc. Some States 
even provide a further limit that any increase of debt beyond 2% 
of the value of taxable property must be approved by the voters 
at an election. All the States provide a certain time ranging from 
25 to 30 years within which such local debts must be extinguished 
and require the localities at the time of contracting the debt to 
levy a tax providing for interest and principal of the loan. 

The money borrowed by the State must be used for the pur- 
pose specified in the loan, and a sinking fund must be provided for 
each loan. The State's credit may not be given or pledged to any 
person or corporation, nor may the State subscribe to stock of a 
corporation. 

State Taxation. — The new services which the State has under- 
taken mean much greater expense. This has induced many of the 
legislatures not to rely only upon the older forms of taxation but to 
seek new revenues, arranging these in such a way as to burden the 
masses of the people as little as possible. Among the older, more 
usual sources of State revenue are ~ 

(a) The general property tax which covers both real and personal 
property and yields the largest single item of revenue in the State 
system. The personal property tax has also been tried in most of 
the commonwealths. In all it is a complete failure, leading to 
concealment of property or false returns, and to serious injustice. 
It has been found so easy to escape this form oi taxation thai the 

holders of bonds, stoeks, securities, etc., seldom make any declara- 
tion of their ownership, and when asked to o\o to usually make a 
false return. It is the failure oi taxes on personalty thai has led to 
the adoption of the other forms of levy described below. 



446 THE NEW AMERICAN GOVERNMENT 

(b) Liquor licenses. These are very heavy in many of the 
States, and are productive of a goodly share of the revenue. In 
some instances they mount as high as $1,500 for a retail license. 
As a result of this and of other high expenses in the business, most 
of the saloons are now in the hands of large brewing companies. 

(c) Mercantile licenses. These yield but little revenue and are 
unpopular with the business community, because of the high cost of 
collection as compared with the amounts secured. 

The newer forms of revenue which are now finding favor are: 

(d) The inheritance tax, which has lately been adopted by a 
number of States; some have levied as high as fifteen per cent upon 
collateral inheritances, that is, property left to heirs who are not in 
the direct line of family descent; while still others, notably in Wis- 
consin and California, have adopted a progressive scale of rates, 
higher upon the larger inheritances. 

(e) The corporation tax. This in many States yields such a 
large revenue as to make other heavy forms of taxation unnecessary. 
It is extremely popular because it supposedly falls upon capital, 
but it is ultimately paid in part at least by the consumers in the 
form of higher prices. A vigorous and successful attempt has 
been made in some States to force corporations to pay, not a special 
corporation tax, but their full share of the general property tax 
upon the real estate and personalty that they own. 

(f) The Income Tax. Over twenty attempts have been made to 
enforce a State income tax. With the exception of Virginia and 
Wisconsin, however, these have all ended in failure, because of the 
small amount of revenue yielded, the serious administrative diffi- 
culties involved and the wholesale evasion and frauds which the 
levy has encouraged. 1 Until recently the State income tax has 
been regarded as a most unhappy experiment, but, because of the 
failure of the personal property tax and the general evasion which 
is practiced to escape its payment, the mind of the legislator is now 
turning once more toward a levy on incomes, which it is admitted, 
if it could be made practical, would be the most equitable of all 
the taxes. In Virginia $100,000 annually is raised by this means, 
but the most notable, substantial success has been scored by Wis- 
consin. A valuable description of the State's experience was 
presented by Governor Francis E. McGovern at the Governors' 
Conference of 191 2. It shows some remarkable conditions in the 
evasion of personal property levies in that State which are prob- 
ably duplicated in many other commonwealths where the personal 
property tax has been tried. The Governor shows that an in- 
vestigation of 473 estates by the Wisconsin Tax Commission, "re- 
vealed taxable securities, such as stocks, bonds, etc., worth 
$2,266,105, which had been assessed the year before at only $74,995, 

1 Prof. E. R. A. Seligman who has written an authoritative work on The 
Income Tax, favors a National rather than a State tax for the reasons given 
above. 



THE STATE 447 

or less than 3^% of their true value." " An investigation recently 
conducted in the city of Milwaukee showed that 200 persons had 
$12,000,000 invested in assessable mortgages, stocks and bonds 
in other States and thus cut them entirely off the tax roll." The 
Governor also set forth startling inequalities in the assessment 
of personal property in different counties of the State, producing 
a vicious system of discrimination which worked largely against 
the poor in favor of the richer classes. It was this highly unjust, 
inequitable system of personal property levies which led to the 
adoption of the Wisconsin income tax. The basis of this law is of 
course net income. This applies to both individuals and corpora- 
tions and allows a new corporation, which is getting on its feet and 
producing at first no dividends whatever, to escape the income 
levy until it has a real profit on which to pay. The exemptions are: 
$800 for a single individual, $1,200 for man and wife, and $200 
additional for each child under 18 years of age which is dependent 
upon the parents for support. The rate of taxation is graduated, 
being 1% for the first $1,000 of taxable income and amounting to 
6% for the highest incomes. The proceeds of the tax are distributed 
by the State as follows: 70% to the city or village or town; 20% to 
the county and 10% to the State. The funds, therefore, revert 
directly to the locality in which they were collected, and are used 
for schools, roads, health and local administration. The assessment 
of incomes is under the direction of the central State tax commis- 
sion of three members appointed by the Governor. The com- 
mission appoints local assessors and has power to transfer them 
from one district to another or remove them from office. The 
assessors require a statement of income from taxpayers and in case 
of mistake or fraud, a re-assessment is made by the officials, from 
which an appeal may be taken to a county board appointed by 
the State tax commission and finally from the decision of this 
board to the commission itself. Corporations are assessed directly 
by the commission. It has been found that the tax is paid chiefly 
by persons who have hitherto escaped taxation very largely, 
although possessed of the bulk of personal property in the State. 
As a revenue producer also the tax is notably successful. In the 
first year, ion, it raised $3,500,000, of which Si, 100,000 was paid 
by individuals and $2,300,000 by corporations. 

The rising expenses of State government are due to three main 
eausos. (a) The natural growth in the State's work and its serv- 
ice to the people; better roads, schools, health measures, better 
protection of property and the necessary regulations oi corporate 
enterprise. All these increase the cost ol government. To this 
increase no reasonable objection can be raised. 

(b) The dishonest use oi public funds is responsible for a large 

amount of the increased cost; recent revelations in \ew York and 

Several other large commonwealths show the incredible extent 
to which this may go when aided by partisan connivance. 



448 THE NEW AMERICAN GOVERNMENT 

(c) The extravagance of the charity system which has already 
been briefly outlined and which also depends for its existence 
largely upon partisan motives. 

The State's taxes and appropriations are made in a hit-or-miss 
fashion. As a rule the legislatures at the beginning of a session 
appropriate the funds necessary for the various administrative 
departments and the judicial and legislative expenses, and only 
at the end do they finally make the heavy appropriations, for so- 
called charitable purposes. These latter are so large as to exceed 
the revenues of the State. In two of the commonwealths the legis- 
lature regularly appropriates sums from twelve to twenty millions 
in excess of the State income and leaves to the Governor the work 
of paring them down. 

For these reasons a number of the States, — Oregon, New York, 
Ohio, Illinois, North Dakota and Wisconsin, have attempted to 
establish a State budget along the lines proposed for the National 
Government by President Taft's Commission on Economy and 
Efficiency. The Oregon Act provides that all departments and in- 
stitutions receiving State funds shall file every two years with the 
Secretary of State, an account showing the amount appropriated 
for the two-year period, the amount required for the next period 
and estimates of probable receipts or revenues for the coming 
two years. These accounts are to be summarized by the Secretary 
and placed at the disposal of the Governor and the legislature. 
The New York Act establishes a State Board of Estimate in which 
the Governor and other officials are members, together with the 
chairman of the chief legislative committees. This board examines 
all requests for appropriations from departments of the State 
government and from charitable and other institutions, and makes 
up a budget as a basis for the action of the legislature. The pur- 
pose of all such legislation is to offer some foundation for a modern 
system of accounting in State affairs, but it is only the first step 
in this direction. There is urgently needed to-day a complete plan 
of State, county, city and township accounts which will enable 
both the official and the voter to ascertain exactly what each 
service costs. No such plan exists outside of those cities which 
have active, privately supported municipal research bureaus. 

If it were established in our State and local governments, it 
would be impossible to conceal the present waste, extravagance 
and fraud, and on the other hand it would become easily possible to 
direct public attention to the advantages of productive expendi- 
tures. A simple, clear method of stating the uses to which the 
public funds are devoted would enable the people of each common- 
wealth to grasp the relative importance of each group of expenses, 
and would immediately lead to sweeping changes in the State 
appropriations. When State funds are misused the cause is usually 
some special interest which has fastened itself upon the party 
system. Any proposed appropriation is judged by the standard — 



i 



THE STATE 449 

how will it help the friends of the party? The grant of funds may 
be unjust, it may favor a powerful clique or group of interests, it 
may discriminate in an unfair manner, or it may be positively 
illegal, but will it help the party? This is the very opposite of the 
common welfare — it is the service of special groups, interests, and 
intrigues. The first step in the overthrow of this parasitic growth 
which has flourished for years in all the States is to show the people 
clearly where the public moneys go, what proportion of them is 
devoted to each general purpose and exactly what use is made of 
them by each of the offices and organizations to which they are 
granted. A typical means to this end is seen in the Wisconsin 
Board of Public Affairs composed of six State officials and three 
appointed members, which has as one of its important duties the 
establishment of a complete accounting system for every public 
body which receives State funds, — and by " public body" is meant 
not only public officer, commission or department, but also any 
institution, body or organization which receives, expends or handles 
the public moneys. The board requires detailed reports from every 
such body, showing the use of public funds; it has full authority 
to investigate such use, to establish efficiency records of employes, 
and to introduce improved business methods. It may investigate 
the feasibility of a central purchasing department for all public 
bodies, a central board of control for public educational institu- 
tions, it may test the efficiency of their teaching and educational 
methods, inquire into the cost of State printing, and other matters 
connected with the greater vigor and economy of the public bodies 
enjoying State appropriations. The Board employs a paid secre- 
tary and a number of accountants and investigators. It is also 
authorized to examine and report on other questions of public 
policy which are especially referred to it from time to time by the 
legislature; among these have been the duplication of work by 
public bodies and the possibility of reorganizing these bodies and 
redistributing their work along more effective lines, and the sub- 
ject of co-operative credit and co-operative marketing. The board 
and its work give a striking illustration of the efforts, not always 
well-directed, but constantly more serious and vigorous, to modern- 
ize the State government and make it useful to all classes of the 
people. The Wisconsin board has been given more duties than it 
can possibly perform, but every one of them is of immediate 
value to the people of the State. The accounts and accounting 
methods of State and local bodies are now attracting public 
attention. 

The Oregon Act of 1913 requires the insurance commissioner to 
conduct an annual examination oi the accounts o\ the State offices, 
of institutions receiving State funds, and of the counties oi the 
State; he also prescribes a uniform system o\ accounting for these 

bodies which they an 1 required by law to observe. Other States 

are following in this practice, which bids fair to become a general 



4 SO THE NEW AMERICAN GOVERNMENT 

custom and to lift local accounts from their present obscurity and 
irresponsibility. 

Central Supervision of Local Administration. — We have now 
considered most of the needs of the people which receive attention 
from the State. In all of them the new efforts of each common- 
wealth to make itself more useful and efficient have produced an 
increase in the central powers of the State somewhat at the expense 
of the local authorities. The financial aid or subsidy given by the 
commonwealth to the local authorities has been the means of 
effecting the change. This tendency toward centralization is still 
growing. Although each State began its history with English 
traditions of local self-government and many of the little local 
authorities still show the greatest jealousy of any central en- 
croachment on their powers, the old days of complete local inde- 
pendence are past and we are now in a fair way to recognize what 
has long been accepted as a fact by foreign governments, — that a 
safe degree of supervision, guidance and even direct control by 
central officers is necessary in the modern State. The accounts of 
local authorities should be inspected and audited by central agents. 
The standard of health of the community may at times be threat- 
ened by forces beyond the control of the local board, — the State 
board must act. The progress of enlightenment and education 
of the children of a township cannot always wait upon the possible 
ignorance or failure of a township school board. The traffic 
through a local district cannot reasonably be blocked by the local 
official's ignorance of modern road building. In all of these matters 
something more than local interests are at stake. In all of them, 
too, it will usually be found that the people of the locality are 
willing and anxious to do their part towards local improvement, 
but not infrequently their elected officials in council, board or other 
office lack all qualifications for their duties and need guidance 
from skilled, technical experts or other central authorities. It 
is here that the control and supervision of the State official proves 
of greatest value in infusing local officers with a keener spirit of 
enthusiasm, a higher standard of effectiveness and providing them 
with the requisite technical and administrative knowledge to 
carry out the new standards of public work. The continental 
ideal of extreme centralization may never find root on American 
soil, but in many of our commonwealths we are already developing 
a plan which is better suited to our conditions, a system in which 
the duty of the central authority is to educate, inspire and guide 
and, when emergency requires, to enforce. 

REFERENCES 

State Highway Commissioner, Annual Report. See especially that of New 
Jersey or Connecticut. 

R. T. Ely: Taxation in American States and Cities. 
Supplementary Report Maryland Tax Commission, 1888. 
Proceedings of the Annual Conference of Governors, 191 2. 



THE STATE 45 1 

Proceedings American Political Science Association, 191 2. Especially sugges- 
tions for a State budget, S. G. Lowrie. 

Annual Reports of the State Treasurer. 

James Bryce: The American Commonwealth, 1910 Edition, Chapter XLIII. 

The American Year Book. 

R. H. Whitten: Public Administration in Massachusetts. 

S. P. Orth: Centralization in Ohio. 

H. M. Bowman: Administration oj Iowa, the last three works are published in 
Columbia University Studies in History, Economics, etc. 

A valuable discussion of current questions in taxaton is given in the Annual 
Proceedings of the Conference of Tax Commissioners. 

The Wisconsin Income Tax Law, with notes, 2d Edition, 1913, The Wisconsin 
Tax Commission. 

Readjustments in Taxation, The Annals, March, 1915. 

QUESTIONS 

1. Prepare a summary report on the more important financial provisions 
of your State constitution, covering the following clauses: 

(a) Limits on taxation; 

(b) Limits on State debts for various purposes; 

(c) Limits on local debts for various purposes; 

(d) Limits on use of State funds and appropriations; 

(e) Exemptions from taxation; 

2. Resolved that these constitutional limitations should be repealed. 
Defend either side. 

3. Prepare a summary statement of the public debt of your State and show 
the purposes for which it has been contracted. 

4. Show the growth of your State debt and the reasons. 

5. Contrast the forms of tax levied by the National Government with those 
employed in your State. 

6. Which of your State's taxes produce the most revenue? Show how much. 

7. Prepare a brief report showing the form of the personal property tax in 
your State, if it exists, and secure some competent opinion as to the evasion of 
this tax. 

8. Explain the defects of the income tax as usually applied. 

9. Why have Virginia and Wisconsin again levied such a tax? 

10. Prepare a brief report on the Wisconsin income tax and the system of 
administration which collects it. Explain its results, as contrasted with those of 
the personal property tax. 

11. Resolved that the general income tax should be adopted in this State. 
Take either side. 

12. Are inheritance taxes easy or difficult to collect and why? 

13. Resolved that a progressive inheritance tax on all legacies above $30,00(1 
should be established in this Stale. Defend either side. 

14. Explain the sources of revenue of the local authorities in your State. 

15. Resolved that local administration in all branches should be free from 
interference of State officials. Take eit her side. 

16. Why are State expenses growing so rapidly? Prepare a brief table 
showing recent increases in your State, and the purposes or causes oi such 
increase. 

17. Does your State legislature try to balance State income and expenditure? 
Show the plan adopted at its last session, or the difference between receipts and 
expenditures, if no plan was adopted. 

18. Explain the purposes of a State budget. 

10. Outline any system or systems now in use. ami show their advantages. 

20. Resolved that the budget plan should be adopted in this Slate. Take 
either side. 

21. Explain the duties of the Wisconsin Hoard of Public AtYairs. in State 

finances, 



452 THE NEW AMERICAN GOVERNMENT 

22. Prepare a brief summary of the Oregon Act governing the State audit of 
the expenses of local officers, and explain its purposes. 

23. Resolved that such a plan should be adopted in this State. Take either 
side. 

24. Why are corporation taxes so popular in the States? Could the entire 
State revenue be advantageously raised from this source? Reasons. 

25. Resolved that the entire system of State taxation should be reorganized 
to bring it into better relations with national and local taxation. Defend either 
side. 

26. Resolved that the building and repair of roads should be left entirely to 
the counties and townships of this State. Defend either side. 

27. Does a good road cost more to construct than the old-fashioned type? 
Does it cost more to maintain? Reasons. 

28. Resolved that the modern macadam high-cost roads are a better invest- 
ment than the older type. Defend either side. 

29. Explain the plan followed by New Jersey, Connecticut and other Eastern 
States and show what its advantages are over the older method. 

30. Why are good roads not more popular among the farmers? 

31. Prepare a report on the road system of your State, showing — 

(a) The central and local administration. 

(b) The State subsidy, if any, and the number of miles of old and 

improved road. 

(c) The repair system and cost per mile. 

(d) The cost of construction per mile. 

(e) Any expressions of public opinion on the present system. 



CHAPTER XXIII 

CONSTITUTIONAL PROTECTIONS OF BUSINESS AND 
PERSONAL RIGHTS.— SAFEGUARDS OF INDIVID- 
UALS AND CORPORATIONS 

The Value of Constitutional Protections. — In how far are life, 
liberty and property secure from the momentary whims of the party 
in power in State or Nation? How is the private citizen or the 
business man protected against an oppressive, tyrannical use of the 
machinery of government? May the State and National Govern- 
ments regulate every business whatsoever in any way that they 
please, may they single out any industry or occupation and ruth- 
lessly destroy it? May the executive interpret the laws oppres- 
sively against the rich, or the poor, or may the courts or the legis- 
lature discriminate between different persons, favoring some and 
persecuting others? What safeguards does the Constitution offer 
against such abuses of the regulative power? All these problems 
usually arise in one of the following practical forms : 

i. The dangers of a sudden violent change in the Constitution. 

2. How are corporations, as well as individuals, protected against 
government oppression? 

3. Which businesses may be regulated and how? 

4. How far may prices, rates or charges be fixed by law? 

5. How far may the quality and kind of goods or services offered 
be regulated by law? 

6. May government authorities discriminate by class laws? 

7. Other limits of government regulation. 

I. Changes in the Constitution. — In the method of amending the 
Constitution we see one of those ingeniously devised inventions 
of the Fathers which, they confidently believed, would preserve 
the government from popular excitement and turbulence. Article 5 
provides that an amendment may be proposed either by Congress 
itself, through a two-thirds vote in both Houses, or else by a national 
convention which shall be called by Congress on the application 
of the legislatures of two-thirds of the States. Even after an 
amendment has been proposed in either of these ways, it tloes not 
take effeel until it has been ratified either by the legislatures oi 
three-fourths of the States or by special conventions in three- 
fourths of the States. This most difficult method oi amendment, 
more involved and complex than that of any great nation oi the 

world, was chosen with the Idea oi preventing chants, of raising 

the Constitution far above the ordinary law and making it some- 

453 



454 THE NEW AMERICAN GOVERNMENT 

thing beyond and apart from the changing majority of the moment 
And it has succeeded. Nowhere among civilized peoples is there 
a greater respect and reverence for a political document than is 
shown by Americans for the Great Law of 1787; as each decade 
passes, this admiration of the broad general outlines of our system 
grows. 

But we must remember that the framers themselves, were they 
alive to-day, would consider some clauses more fundamental than 
others; some were bed-rock principles which should last as long 
as the Nation itself endured, while others were based on the needs 
and conditions then familiar, — conditions which might change 
and have indeed since changed. Among the permanent features 
were the republican form or representative system, the elected 
executive and the Federal Union of States. Among the less vital 
matters of detail were the exact method of choosing the legislature 
and the executive, the number of members of the Congress and the 
exact distribution of powers between the Nation and the States. 

Our reverence for the Constitution is centered on its permanent 
principles, — while upon the wisdom of retaining the other, more 
detailed parts, our views must change according to the conditions 
of each epoch. Certain it is that many of these latter, less vital 
clauses have not worked out in the way intended, so that we have 
had either to change the wording of the document or to give its 
words a new meaning or, by means of party organization, to build 
up a machinery entirely outside of the Constitution which in many 
ways defeats or hinders its spirit. For this second less permanent 
group of provisions, we need a method of amendment which will 
insure reasonable progress. Does the present method answer this 
need? 

Unquestionably we must admit that it does not. It has pre- 
vented nearly all progress in the Constitution except in times of 
great crises and popular excitement; the changes which have been 
made at such times, notably the 14th and 15th Amendments, 
have been neither wise nor helpful; for they have accomplished their 
purpose most imperfectly and have brought on other consequences 
that were neither foreseen nor desired. Why do we need an amend- 
ing method that will render changes easier? Why not establish 
as perfect a constitution as possible and keep it without change? 
A political constitution is a continuing growth and not an invention. 
The Fathers in 1787 really expressed in the Constitution the views 
and ideas that had grown up in the previous 500 years of develop* 
ment in England and in this country. 1 

1 George S. Fisher in his Evolution of the Constitution of the United States 
shows in an interesting way how each of the successful features of our Constitu- 
tion is the result of experience and that the genius and inspiration of the framers 
consisted in their wonderful ability to grasp and use the valuable parts of the 
British Constitution and the Colonial Charters so that our Constitution is 
founded upon the solid ground of experience. While some would prefer to think 



CONSTITUTIONAL PROTECTIONS 455 

The Unwritten Constitution. — A young, strong, growing people 
cannot tie itself down to the proceedings of any convention, if 
those proceedings conflict with the vigorous growth of the national 
life. Our Constitution must make provision for such changes in 
its text and meaning as will correspond to the new developments 
and progressive steps in our existence as a people. As the body 
is more than raiment, so is our national life more than the political 
garb that we wear. We do not escape changes by refusing to 
change, — we only render them more violent when they come. 
We cannot prevent our fundamental law from following the real 
opinions, views and standards of the people. A Constitution which 
is not the real sentiment of the people soon fails of enforcement, — 
variations from it are winked at, the courts " interpret it broadly," 
and there soon arises in place of it an " unwritten Constitution" 
composed of customs, habits, precedents, court decisions and party 
rules. This is exactly what has happened to those parts of our 
Constitution which do not fit the real conditions of our national 
life; they are shelved, or superseded, or supplemented by the un- 
written law. In his admirable little booklet on the Unwritten 
Constitution, Judge Tiedeman says of the great document, — 
"But by making a popular idol of it, we are apt to lose the very 
benefits which its excellencies insure. It is the complete harmony 
of its principles with the political evolution of the nation, which 
justly challenges our admiration." And again, speaking of Lin- 
coln's action in declaring martial law, which was apparently illegal 
under the written Constitution, he states, — "Whatever may be the 
proper deduction from the written Constitution, it is an established 
rule of the unwritten Constitution that the President, in the exer- 
cise of his war powers, may substitute martial law for civil law as 
far as the public exigencies may in his judgment require. For the 
time being, the written limitations upon his power are completely 
laid aside, and he appears in the role of an almost absolute dic- 
tator." We have already seen other instances, such as the method 
of electing the President, in which it was clearly intended to remove 
the choice from the hands of the people, yet the formation oi politi- 
cal parties soon completely reversed the written Constitution and 
established such a popular choice. In these ways the fixed rigidity 
of the fundamental law has led us to evade it in order to grow. 
For we must grow. 

But the most striking example, which lias never ceased to arouse 
wonder, is the Supreme Court's repeal oi part of the 14th Amend- 
ment in its decision on the Slaughterhouse Case. 10 Wallace, 36; 
187^. The amendment having declared that citizenship in the 
United States was fundamental and belonged to every person born 
or naturalized in the country, and that State citizenship should be 
incidental to it, then provided further that no State should inter- 
that the document was a pure invention, it is tar more important to set its 
priceless value as a healthy natural growth, 



456 THE NEW AMERICAN GOVERNMENT 

fere with the rights of citizens of the United States, and, gave ta 
Congress power to protect and supervise these rights by appropriate 
laws. If we take this literally in its plain intent, it would enable 
Congress under this power to legislate on every subject which affects 
the rights of the United States citizens, — and what subject does 
not? In short it was feared that Congress in protecting the negroes 
could make laws on all affairs and thereby completely take over 
the sphere formerly held by the States. The latter would be at 
once reduced to the level of dependent districts, subject entirely 
to the control of the National Government. Needless to say such a 
sudden and revolutionary change would have destroyed all the 
real life of the State governments and would have introduced a 
premature and oppressive centralization of power long before the 
people were prepared for it. What should the Supreme Court do 
in this great crisis? Either it must follow the clear apparent read- 
ing of the Amendment with all the sweeping consequences that we 
have just seen, or it must devise a new and different interpretation 
of the clause, which would make United States citizenship supreme 
as was intended, but would protect the States from annihilation, 
thereby making of the 14th Amendment a progressive step forward 
in our continuous growth, rather than a freakish and destructive 
calamity. Of this crisis Tiedeman aptly says, — "Alarmed at the 
peril in which the people stood, and deeply impressed with the 
necessity of providing a remedy, the Supreme Court of the United 
States averted the evil consequences by keeping the operation of 
the amendment within the limits which they felt assured would 
have been imposed by the people, if their judgment had not been 
blinded with passion, and which in their cooler moments they 
would ratify." That is, the Court declared national citizenship 
to be fundamental and State citizenship secondary, but denied to 
Congress the right to interfere with the powers of the States. 1 

From this hasty glance at the unwritten law the following 
facts are clear — (a) in spite of our fixed determination not to 
change the Constitution except by an extremely complex and diffi- 
cult process, we have changed it in important particulars; (b) 
several of these modifications have been made by indirect means, 
through court "interpretations" and by party customs; (c) two 
of the amendments made in the formal way (the 14th and 15th) 
were so drastic, sweeping and ill considered that they have had to 
be changed by court decisions and by public sentiment, that is, by 
the unwritten law. 

Judged then by either standard, as a means of preventing hasty 
changes in extraordinary moments of popular passion, or of securing 
the gradual adoption of reasonable, moderate changes in ordinary 
times, the present method of amendment has failed. We must even 
admit that the very thought on which it is based viz., a distrust of 
the people, is now obsolete. 

1 See Section 7 of this chapter. 



CONSTITUTIONAL PROTECTIONS 457 

The Problem of Amendment. — What then should be the method 
of amendment? If the present system is to give place to one better 
adapted to our needs, the new plan should have the following 
features: 

i. It should distinguish between the Constitution and ordinary 
legislation, as does the present method; there must still be some- 
thing fundamental about the Constitution as contrasted with a 
simple law. 

2. This difference must not be so much a series of insurmountable 
obstacles piled up in front of the popular will to balk it and prevent 
all changes, as at present, but rather a requirement that will distin- 
guish between a momentary whim and a more permanent desire or 
judgment; any change that is continuously desired by a majority, 
should be made. 

3. In order to express the views of the more conservative of our 
people there might possibly be a further distinction between those 
fundamental, essential and permanent features of the document on 
the one hand and the less vital principles of detail on the other, as 
already described, with an easier method of amendment for the 
latter. 

The following plan would embody these three principles: — 

a. Amendments to be proposed by resolution passed by a two- 
thirds majority of each House of Congress. 

b. Amendments to be ratified by a simple majority vote of the 
qualified voters of the country, to be held not less than one year nor 
more than two years after the favorable action of Congress, as 
above provided. 

c. A second popular vote, a year later, in order to change any of 
those parts of the Constitution which are considered essential or 
vital. 

Such a method of amendment would be founded upon our ripe 
experience and would make it possible to adopt any change which 
the strong steady pressure of public opinion insistently demanded, 
while at the same time protecting the vital fundamental parts of our 
system from the political whims of the moment. 

The First Ten Amendments. — Each group of amendments has 
been adopted for a separate purpose: — the first 10 were to prevent 
the National Government from violating the liberty of the people 
or usurping the powers of the States. The 13th, 14th and 15th were 
intended to free the negro slaves, to proteet them from persecution 
by the State governments and to prevent any State Legislation 
which would deprive them of their votes for racial reasons. The 
first ten amendments were all inserted at one time ami are usually 
called the "Hill of Rights" oi the Constitution. 1 When in 17S7 the 

l When in the greal English Revolution of 1688 'So the British Parliament 
declared the throne vacanl ami called William of Orange to the vacancy, the 
Houses of Parliament passed a '"Hill oi Rights" which was signed by the new 
Ring, thereby binding him ami his heirs •>> observe it. It contained a statement 



458 THE NEW AMERICAN GOVERNMENT 

Constitution was first proposed, most of the State constitutions 
already contained bills of rights. These were statements copied 
mainly from the great English Bill and setting forth certain civil 
and political rights as belonging to the people. The original 
Constitution in 1787 did not contain these statements and when it 
came before the State conventions for their approval it was thought 
wise to add such a list of fundamental rights. Congress at its first 
session took up this subject, and 189 amendments were suggested 
by the various State conventions and legislatures, most of these 
being repetitions of each other. Twelve were selected from this 
number and were passed by a two-thirds vote of Congress, and then 
sent to the State legislatures for their approval. Ten of the twelve 
were so ratified and were declared in force at the close of 179 1. 

Since they were intended solely to limit the Federal Government, 
they do not apply to the State authorities. The protection which 
they offer to all persons, both citizens and foreigners, covers the 
following points: — 

Religious freedom. 

Freedom of speech and of the press. 

Protection of person and home against unwarrantable searches 
and seizures. 

Safeguards of procedure, jury trial, etc., for persons accused of 
crime. 

Safeguards of liberty and property in civil suits. 

The rule of interpreting the Constitution. (Amendment ten.) 

Many of these safeguards and protections are repeated in the 
14th Amendment which applies to the States only. Accordingly if 
a person's property or liberty is violated he must appeal to the first 
ten Amendments for redress against the National Government, 
or to the 14th Amendment if the State has committed the violation. 
The courts make a sharp distinction between the first ten Amend- 
ments and the rest of the Constitution in this respect. They hold 
that notwithstanding the broad general language of the first ten 
Amendments these latter are to be applied as a limit to the Federal 
Government only. For example: the 5th declares that no persons 
shall be "deprived of life, liberty or property without due process 
of law." A literal interpretation would hold this to mean either 
by the States or the National Government, but the history of the 
amendments shows that only the National Government was in- 
tended, as we have seen. The owner of certain wharf property in 
the city of Baltimore brought suit against the city, Barron v. 
Baltimore, 7 Peters, 243; 1833, because of the damages done to his 
wharf by the city in diverting certain streams of water so that they 
deposited sand in front of the wharf. He held that this action was 
a taking of his property in defiance of the 5th Amendment. The 

of what the Crown could not do, just as our first ten amendments, drawn exactly 
100 years later, contained a list of rights which the new American National 
Government could not violate. < 



CONSTITUTIONAL PROTECTIONS 459 

Supreme Court ruled that the amendment did not apply to the 
State governments but was intended solely as a limit upon the 
powers of Congress. A long line of later decisions has upheld this 
view and applied it to the other provisions of the first ten amend- 
ments. 

The 13th Amendment; Peonage Laws. — The 13th Amendment 
prohibiting slavery or involuntary servitude has some practical 
importance even to-day. The amendment forbids slavery not only 
in the United States but in any place subject to their jurisdiction. 
One of its recent applications was the repeal of an agreement made 
by the American army with the Sultan of the Sulus in 1899, because 
the agreement expressly recognized all the domestic institutions 
of the Sulu Islands, among which were both polygamy and slavery. 

Another instance was the ruling by the Supreme Court that a 
State could not pass a law punishing by penal servitude a debtor 
who obtained advances of food, provisions and money, under a 
promise to labor, and then refused to perform such labor. In the 
South the white farmer often employs colored hands giving them 
an advance payment either in money, food or farming implements 
and deducting the loan from their wages in small installments dur- 
ing the next year. It having become customary among some of the 
more shiftless class of Negroes to obtain the loan and then leave 
without paying it in full, the farmer was unable either to recover 
the money advanced or to compel the workman to do his agreed 
task, since it did not pay to sue the Negro debtors, who owned 
nothing. To remedy this several Southern States passed laws 
making it a criminal offence for a workman to enter into such a 
labor contract, and thereupon refuse either to do the labor or to 
pay back the money advanced; and providing that it should be 
prima facie evidence of an intent to defraud the farmer if the 
laborer left his employment without paying the loan. Punishment 
was by fine or imprisonment. In the leading case of Bailey v. 
Alabama, 219 U. S. 219; 191 1, the question arose — Do such laws 
violate the 13th Amendment by creating involuntary servitude? 
Bailey was indicted under the State law for having broken a eon- 
tract to work as a farm hand for the sum of Si 2.00 per month. He 
obtained in advance $15.00 for which he was to pay $1.25 monthly 
from his wages. After remaining one month in the employ oi the 
Company, he left without giving any reason ami failed to refund the 
$15.00. The lower court convicted Bailey, instructing the jury that 
the breaking of Bailey's contract and his leaving employment 
created a presumption that the contract was entered into fraud- 
ulently. The jury found Bailey guilty. He, being sentenced to 
pay a fine of $30.00 or [36 days in prison, appealed to the Supreme 
Court of the United States, claiming the law to be a violation oi the 
amendment, and declaring that since a debtor was not a criminal 
unless criminal intent were plainly shown, he could not he sentenced 
to involuntary servitude. At the time of the suit there was some 



460 THE NEW AMERICAN GOVERNMENT 

agitation of public opinion, it being discovered that the treatment oi 
prisoners was in many cases debasing and lowering to their moral 
tone and that prisoners were obliged to work in convict camps, were 
auctioned off to the highest bidders for their services and badly 
treated; in consequence of these facts much attention had been 
directed from all parts of the country to the whole problem of 
peonage. The Supreme Court decision probably reflects this 
opinion. The Court held that the law was a violation of the amend- 
ment because it visited a criminal punishment, that is, servitude, 
upon something which was not criminal; viz., debt. The full intent 
of the constitutional provision against servitude could be defeated 
with obvious facility, if through the guise of contracts under which 
advances had been made, debtors could be held to compulsory 
service. It is the compulsion of the service which is forbidden, for 
when that occurs, the condition of servitude is created, which would 
be no less involuntary, because of the original agreement to work 
out the indebtedness. Peonage is a condition of compulsory service 
based on the indebtedness of the peon to the master. It exists even 
where the debtor voluntarily contracts to be bound to the service 
of his creditor, and also where it is forced upon the debtor by some 
provision of the law. In short, a man may legally contract to ren- 
der a service for a given time, but it is not legal nor constitutional 
under the 13 th Amendment for him to be forced to labor if he should 
break his contract, nor is it constitutional to sentence a person to 
involuntary servitude immediately upon his breaking a labor 
contract, nor to claim as does the State law, that the simple failure 
to perform such a labor contract is in itself evidence of fraudulent 
intent, and therefore punishable with involuntary servitude. 
Bailey was accordingly freed from the imprisonment and forced 
labor. Similar peonage laws in other States have since been 
abandoned. 

The 14th and 15th Amendments. — The original purpose of the 
14th Amendment was to prevent the State legislatures of the South 
from passing hostile laws against the freed Negroes. Although the 
Negro slaves had been emancipated by the 13 th Amendment their 
attitude towards the white population and that of the whites towards 
them was so hostile that constant rioting, bloodshed, and revolting 
race warfare followed. The Northern people, in control of the Fed- 
eral Government, sided with the freedmen and decided to protect 
them by (1) granting them United States citizenship with all of its 
privileges and immunities, and (2) by forbidding the States from 
interfering with United States citizens' rights. But up to that time 
citizenship had been conferred only by State laws. The 14th Amend- 
ment changed this by declaring that all persons "born or naturalized " 
in the United States were citizens of the United States, and forbade 
the States to violate the rights of United States citizens. Since prac- 
tically all the former slaves had been born in the United States, 
the Amendment conferred citizenship upon them. It was later 



CONSTITUTIONAL PROTECTIONS 46 1 

followed by the 15th Amendment which declared that the State 
must not deprive a citizen of the United States of the right to vote, 
because of his color or race. 1 

This clumsy method of protection had at least the effect of pre- 
venting persecution of the Negro by the State legislatures, but it 
failed completely in its purpose to establish the Negro race in eco- 
nomic independence in the South. The Negroes had been useful 
and had a definite place in the economic system. But when the 
race conflicts began after the Civil War, industrial co-operation 
between the races became almost impossible and the blacks rapidly 
became a heavy burden and danger to the communities in which 
they lived. The industries of the South were for a long time shat- 
tered by this convulsion, due both to the war and to the unreasonable 
and impossible legal conditions which the North had imposed. Like 
all other peoples who have experimented in government, we Ameri- 
cans often give way to the notion that anything can be done by law. 
Nowhere has this idea failed more disastrously than in the attempt 
to make useful citizens of former slaves solely by a constitutional 
amendment. The situation created by this unfortunate fanaticism 
is being slowly and painfully worked out by both races in the South. 
The Negro is coming to his own by the gradual spread of mechanical 
and technical training, which gives him a recognized place as a useful 
member of the community and above all a desire to acquire property 
by skilled work, and thereby attain a position of real independence. 
Grover Cleveland with his gift for epigram described the problem 
by saying — "Before we have a citizen we must first have a man." 
The citizenship of the Negro like that of any other group of our people 
is becoming a reality in proportion as he can learn to work and to 
make himself a helpful and needed factor in our civilization. 

We must remember that the 14th Amendment aims to protect 
the Negro's civil and political rights. It is not intended to stamp him 
socially as the superior, the equal, or the inferior of the whites. This 
principle is clearly shown in Plessy v. Ferguson, 163 U. S. 537; 1S96. 
Here the State of Louisiana had required that railway companies 
in the State should provide equal but separate accommodations for 
white and colored passengers by partitioning oil two or more coaches 
on each train and requiring pea-sons of each race to occupy the por- 
tions of the cars assigned to them. Plessy, a colored man. was ejected 
from the car assigned to white persons and arresting for violating 
the Act. lie claimed that the law was invalid in that it deprived 
him of the equal protection of the law. The State courts having 

decided against him he appealed to the V . s. Supreme Court which 
in [896 held the law constitutional, since it did not interfere with 

1 Hut tin- State may deprive a prison of t In- right to \ ote for any other reason, 
such as illiteracy, crime, pauperism, insufficient age or insufficient residence 

within the State. Most of the Stairs do so limit the suffrage ami mane of them 

restrict it to males. The only voting right therefore which the 15th Amendment 
grants is freedom from discrimination because of race. 



462 THE NEW AMERICAN GOVERNMENT 

the political or civil equality of the races, but was intended rather to 
preserve peace and good order. The law, said the Court, did not 
stamp the colored race with any badge of inferiority unless the race 
chose to put that construction upon it. Equal rights could not be 
secured to the negro by an enforced commingling of the two races. 
If the civil and political rights of both races were equal, one cannot 
be inferior to the other, civilly or politically. If one race be dif- 
ferent from the other socially, the Constitution of the United States 
cannot put them upon the same plane. But the 14th Amendment 
is not confined to the race which it was intended to protect; its terms 
are so broad as to include all "citizens" and "persons" and in this 
way it has come to have an important bearing upon business and 
property rights as we shall now see. 

The Last Two Amendments. — The 16th and 17th Amendments 
which authorize Congress to levy an income tax without apportioning 
it according to population, and provide for the popular election of 
Senators, have already been mentioned in the chapters on the Senate 
and Powers of Congress. Their adoption marks a new era because 
the conviction had been steadily growing that the Constitution could 
not be amended; it is the hope of many that further changes may be 
made now that the " ice is broken." Among those recently suggested 
are: 

The direct election of the President, 

Women's Suffrage, 

Prohibition, 

National control over insurance, manufacturing, and corporations. 

We must remember, however, that the income tax amendment 
was agitated for 18 years while the direct election of Senators was 
debated in Congress at various times for over 80 years before it re- 
ceived approval. From our experience in these two cases it would 
seem that we are over-protected against constitutional changes in 
ordinary times. 

2. The Protection of Corporation Charters. — The Constitution 
declares in Article I, Section 10, that "no State shall pass any law 
impairing the obligation of contracts." When a State government 
grants a charter of incorporation to a new company, the State in 
reality makes a contract or agreement with the incorporators, by 
which a new legal person, the corporation, is created and its powers 
are defined in the charter or agreement. The charter so granted 
is a contract in the sense of the Constitution, and cannot be revoked 
or changed or "impaired" by the State without the consent of the 
corporation. This principle was established in the Dartmouth College 
case which has been quoted in thousands of corporation decisions 
since it was handed down by Chief Justice Marshall in 1819. In 
many points it is the foundation of our corporation law. In 1769 
King George III of England issued a charter of incorporation for 
Dartmouth College, in the colony of New Hampshire, the principal 
purpose being to encourage education in the colonies and to enable 



CONSTITUTIONAL PROTECTIONS 463 

philanthropic persons to donate funds to a permanent institution of 
moral teaching in the new world. After the Revolution and the 
adoption of the present National Constitution, the State legislature 
of New Hampshire fell into a political quarrel with the College au- 
thorities and decided to secure control of the College board of trus- 
tees. It accordingly passed an Act in 18 16 reorganizing the College 
changing its title to that of "Dartmouth University," enlarging the 
board of trustees, and creating a new authority, the board of over- 
seers, which should control the general policy of the institution. 
To this the old board of trustees objected; claiming that the State 
legislature had no authority to change the terms of the charter. The 
case going to the United States Supreme Court, Daniel Webster 
who represented the trustees as against the State, emphasized 
strongly the point that the Crown in granting the charter had in effect 
made an agreement or contract with the donors and founders of the 
College, to give it perpetual existence in a fixed definite form, in 
return for which the College was to confer a public benefit by dissem- 
inating moral principles of education. He contended that if such 
an agreement existed, the State legislature under the Constitution 
had no right to change or impair the obligation of the contract with- 
out the consent of the corporation. /In its decision, Dartmouth 
College v. Woodward, 4 Wheaton, 518; 18 19, the Supreme Court 
adopted this view. "This is plainly a contract to which the donors, 
the trustees, and the crown (to whose rights and obligations New 
Hampshire succeeds) were the original parties. It is a contract made 
on a valuable consideration. It is a contract for the security and 
disposition of property. It is a contract on the faith of which real 
and personal estate has been conveyed to the corporation. It is 
then a contract within the letter of the Constitution, and within 
its spirit also. . . ." 

The next question was — is the obligation of this contract binding 
upon the State of New Hampshire? By the Revolution the rights 
and duties of the British crown and parliament had passed over to 
the State legislature, and when the Constitution of the United States 
was adopted, the legislature was bound by the clause forbidding any 
Act which would impair the obligation oi the contract In short. 
the legislature inherited the powers and duties oi the British CTOWD 
with the limitation that it must not change or impair the contract. 

The final question was— did the New Hampshire law impair the 
contract or charter? After pointing out that the State law of tSio 
changed the board of trustees ami its powers and numbers, and es- 
tablished a new authority, the board oi overseers, which should be 
under the control oi the State government, the Court says: — 

"On the effect oi this law, two opinions cannot be entertained. 
Between acting directly, and acting through the agency oi trustees 

and overseers, no essential difference is perceived. The whole power 
of governing the college is transferred from trustees, appointed ac- 
cording to the will of the founder, expressed in the charter, to the 



464 THE NEW AMERICAN GOVERNMENT 

executive of New Hampshire. The management and application 
of the funds ... are placed by this Act under the control of the 
government of the State. The will of the State is substituted for 
the will of the donors, in every essential operation of the college. 
This is not an immaterial change. 

"The charter of 1769 exists no longer. It is reorganized; and re- 
organized in such a manner as to convert a literary institution, 
moulded according to the will of its founders, and placed under the 
control of private literary men, into a machine entirely subservient 
to the will of government. This may be for the advantage of this 
college in particular, and may be for the advantage of literature in 
general ; but it is not according to the will of the donors, and is sub- 
versive of that contract on the faith of which their property was 
given. It results, from this opinion, that the Acts of the legislature 
of New Hampshire, which are stated in the special verdict found 
in this cause, are repugnant to the Constitution of the United States." 

Another side of this important principle is illustrated in the Bing- 
hampton Bridge case, 3 Wallace, 51; 1865. Here the State legisla- 
ture had granted a charter to a corporation, authorizing it to estab- 
lish a toll bridge and making it unlawful for any person to erect 
another bridge across the same stream within two miles above or 
below the company's bridge. Later the legislature authorized another 
toll bridge within the two-mile limit and the first corporation claimed 
this to be a violation of the contract in its own charter. Here again 
the Court upheld the charter on the ground that it was a binding 
contract, saying: 

"The constitutional right of one legislature to grant corporate 
privileges and franchises, so as to bind and conclude a succeeding 
one, has been denied. We have supposed, if anything was settled 
by an unbroken course of decisions in the Federal and State courts, 
it was that an act of incorporation was a contract between the State 
and the stockholders. All courts at this day are estopped from 
questioning the doctrine. The security of property rests upon it, 
and every successful enterprise is undertaken in the unshaken be- 
lief that it will never be forsaken. 

"The principle is supported by reason as well as authority. It 
was well remarked by the Chief Justice in the Dartmouth College 
case, 'that the objects for which a corporation is created are uni- 
versally such as the government wishes to promote. They are 
deemed beneficial to the country, and this benefit constitutes the 
consideration, and in most cases the sole consideration for the grant.' 
The purposes to be attained are generally beyond the ability of 
individual enterprise, and can only be accomplished through the 
aid of associated wealth. This will not be risked unless privileges 
are given and securities furnished in an act of incorporation. The 
wants of the public are often so imperative, that a duty is imposed 
on government to provide for them; and as experience has proved 
that a State should not directly attempt to do this, it is necessary to 



CONSTITUTIONAL PROTECTIONS 465 

confer on others the faculty of doing what the sovereign power is 
unwilling to undertake. The legislature, therefore, says to public- 
spirited citizens: 'If you will embark, with your time, money, and 
skill, in an enterprise which will accommodate the public necessities, 
we will grant to you, for a limited period, or in perpetuity, privileges 
that will justify the expenditure of your money, and the employment 
of your time and skill.' Such a grant is a contract, with mutual 
considerations, and justice and good policy alike require that the 
protection of the law should be assured to it. 

" It is argued, as a reason why courts should not be rigid in enforc- 
ing the contracts made by States, that legislative bodies are often 
overreached by designing men, and dispose of franchises with great 
recklessness. 

" If the knowledge that a contract made by a State with individuals 
is equally protected from invasion as a contract made between natural 
persons, does not awaken watchfulness and care on the part of law- 
makers, it is difficult to perceive what would. The corrective to 
improvident legislation is not in the courts, but is to be found else- 
where." 

The protection given by the "obligation of contracts" clause 
is a broad and substantial one; it covers not only those contracts 
which the State itself has made, but also agreements made between 
private individuals, and safeguards them from destructive State 
laws. In Sturges v. Crowninshield, 4 Wheaton, 192; 18 19, the de- 
fendant Crowinshield had made two promissory notes, both exe- 
cuted in New York State. Afterward the State passed a bankruptcy 
act providing for the usual judicial proceedings and the discharge of 
insolvent debtors, and making the discharge apply to past as well as 
future debtors. The Supreme Court held that the State could only 
regulate and control future contracts, and did not possess such a 
power over debts contracted before the passage of the law; these 
latter debts were contracts in the sense of Section 10, Article I and 
although they were made by private parties the Slate was none the 
less bound to respect them. A State act changing the terms of a 
previously made private contract, making them more favorable to 
either the debtor or the creditor, or releasing the debtor from his 
obligations, even under the form of a bankruptcy law, was a viola- 
tion of the obligations of the contract, and as such was unconstitu- 
tional. This ruling of course applies only to past debts, not to those 
contracted after the passage of the State law. Although Congress 
has now passed a national bankruptcy act which supersedes the 
various State statutes on the subject, the Crowinshield ease is still 
of practical importance since it shows that ordinary contracts not 
made by the State but by private persons are immune from later 
State laws intended to destroy their binding force. 

A good recent example oi the broad protection given to corpo- 
rations by this clause is the decision in Russell ;\ Sebastian. ;;; 
U. S. 395; 1914. The constitution of California, as amended in 1 S S 5 . 



466 THE NEW AMERICAN GOVERNMENT 

attempted to provide for greater competition in water and gas 
works in various municipalities of the State. Section 19 in lengthy 
terms declared that where no municipal plant existed, any person or 
corporation could have the privilege of using the public streets and 
thoroughfares of the city, under the direction of its officials, to lay 
down pipes and conduits and make connections, in order to intro- 
duce a supply of gas light or water, upon the condition that the city 
government could regulate the charges. Under this section of 
the State constitution the Economic Gas Light Company was 
organized in 1909 and proceeded to buy a plant and to lay pipes in 
Los Angeles. It had some 3,500 customers and enlarged its plant 
by investing fresh capital to the extent of over $100,000, with a view 
to laying additional mains and offering its facilities to the other 
portions of the city. On October 10, 191 1, Section 19 of the Con- 
stitution was amended to provide that any city could establish and 
operate its own public works and that persons or private corpora- 
tions might also establish and operate works upon such conditions 
and under such rules as the city might prescribe. Immediately 
afterward the city of Los Angeles under this amended clause of 
Section 19 passed ordinances making it unlawful to excavate in the 
city streets without written permission from the board of public 
works, and requiring companies engaging in public works to pur- 
chase a franchise or right from the city. Two days later, Febru- 
ary 23, 19 1 2, the Economic Gas Light Company applied to the board 
for such a permission to excavate in the streets, with the purpose of 
extending its mains; the board refused such permission until the 
company should buy a franchise from the city. As no such require- 
ment of purchase of a franchise was contained in the original State 
constitution under which the company was formed and as the re- 
quirement to purchase was made by a later city ordinance, the 
company claimed that it was not bound to purchase any such right 
but was authorized by the previous constitution itself to proceed 
with the construction of its pipes and mains. It then directed its 
employe, Russell, to begin construction work, which he did. He 
was arrested by order of the city officials for a violation of the 
ordinance mentioned and there arose in this way an application for a 
writ of habeas corpus to secure his freedom. The State courts 
denying the writ, the application was taken to the United States 
Supreme Court and the interesting question was presented,— did 
Section 19 of the State constitution of 1885 offer to companies a 
right to construct mains for gas and water in such a way as to form 
an obligation, which the State must respect if the offer were ac- 
cepted by a corporation? The gas company claimed that it did, 
that in pursuance of the original constitution's express terms grant- 
ing a permit to open the city streets, it had gone ahead and pur- 
chased its plant, constructed its mains and later invested large 
amounts of capital with the sole object of extending its business; 
that unless its business were thus enlarged by the laying of addi- 



CONSTITUTIONAL PROTECTIONS 467 

tional pipes for new consumers it would suffer a loss of $2,000 a 
month, because of the extra investments which it had made; fur- 
ther, that having accepted the offer contained in the State con- 
stitution, the company could not later be deprived of its right to 
lay mains in the streets by any subsequent change in the constitu- 
tion nor by a municipal ordinance passed in pursuance of such a 
change, but that by the clause of the United States Constitution for- 
bidding State laws to violate the obligation of contracts, both the 
State of California and the city of Los Angeles were prevented from 
passing additional legislation which would defeat or impair the 
company's implied agreement under the old State constitution. 
To this view the Supreme Court gave its approval. The State 
constitution of 1885, the Court ruled, had been accepted by the 
company and an obligation created which the State could not im- 
pair. This guaranteed to the company not only the right to keep 
its existing mains and pipes but to lay additional pipes within the 
city limits in the future. "As to the question of fact, the present 
case presents no controversy. It was averred, and not denied, that 
the works of the gas company were established and operated with 
the intent to furnish gas throughout the city, wherever needed, and 
that this enterprise had been diligently prosecuted; that a large 
investment had been made in a plant which was adequate to supply 
a much greater territory than that reached by the distributing 
mains when the amendment of 191 1 was adopted; that the expense 
of this installation made it impossible to supply at a profit the 
limited territory contiguous to the streets then actually occupied 
by the company; and that if it were confined in its service to that 
territory it would sustain a constant loss." Under this ruling the 
"obligation of contracts" clause protects all companies which have 
undertaken business of a public nature in acceptance of what the 
Court considers an "offer" or guarantee contained in a State con- 
stitution. 

In order to regain some of the regulative power over corporations 
which the State had lost by the earlier decisions, all the common- 
wealths have passed general corporation laws which provide that 
companies chartered in the future shall be subject to the regulation 
and general police laws of the State. A description of these laws is 
given in the Chapter on the Police Power, 

3. Which Kinds of Business May be Regulated? — Every business 
is subject to regulation, whether it be manufacturing, banking, 
trading, transportation, or professional work. Hut not every busi- 
ness may be regulated in any way that the legislature sees tit. 
There are two general kinds of regulation ami public control, 
(a) the regulation of internal conditions to promote safety, health, 
and prevent fraud; examples are seen in the factory acts and the 
incorporation laws, which are to be examined later. ^M The other 
is a fixing 01 prices, rates, charges, or quality and kind oi service, for 
the benefit of the consumer and the general public, The first kind of 



468 THE NEW AMERICAN GOVERNMENT 

regulation may be applied to any business; the second, price and 
service regulation, is constitutional only when applied to businesses 
of a public nature. What is a public business in this sense? Chiefly 
one which large numbers of people are obliged to patronize, such 
as a ferry or a street car line, or a gas company, — all of which are 
therefore largely natural monopolies; or again a business in which 
the public interest in honest efficient service may at times outweigh 
all considerations of private liberty, such as the auctioneer, the 
baker, the cab driver, etc. 

Those callings and industries which are not of this public nature 
cannot be regulated by government, either as to price or service, for 
such a control would be a violation of the 5th and 14th Amend- 
ments, declaring that no person shall be deprived of liberty or 
property without due process of law. The courts hold that govern- 
ment interference with the price or quality of a man's goods in a 
private business is depriving him of his liberty and property to make 
such quality and price as he pleases. But they also hold that the 
words "liberty" and " property" are to be so understood only in 
private industries, and that the rights of the individual are subor- 
dinate to the public interest in a public business. 

4. The Regulation of Rates, Prices and Charges.— From our 
earliest history callings of the above described nature, in which the 
community had an active interest, have been subject to public 
control as to both rates and the kind of service to be rendered. An 
interesting summary of these principles was given by the Supreme 
Court in the noted case of Munn v. Illinois, 94 U. S. 113; 1876. 

In 1874 the Illinois legislature passed an Act fixing the maximum 
charge for the storage of grain in warehouses at Chicago and other 
places in the State where grain was stored in bulk. This Act was 
resisted by the owners of grain elevators, who urged among other 
grounds that it was unconstitutional, because it deprived them of 
property without due process of law. The Federal Supreme Court, 
to which the case finally came, declared that the State law was valid 
and constitutional and that a regulation of the rates of grain eleva- 
tors in this form was not depriving the owners of their property 
without due process of law, so long as the rates fixed were reason- 
able. The Court found that from the earliest times in England, as 
well as in this country, the government had exercised the right to 
regulate rates in all sorts of public industries and occupations, when 
such regulation became necessary for the public good. This was 
notably true of such occupations as ferries, hackmen, common 
carriers, inn-keepers, bakers, millers, wharfingers, chimney sweeps, 
draymen, auctioneers, warehouses, turnpike roads, bridge-tolls, 
etc. In all of these the public interest in honest service and reason- 
able charges was so strong and urgent that regulation was essential 
to the public welfare. Any person who entered these fields, did so 
with full knowledge of the community's general interest in his busi- 
ness and of its legal authority over that business. 



CONSTITUTIONAL PROTECTIONS 469 

The best recent instance that can be given of the growth of public 
interest in a business to such a point as to subject its rates and 
charges to regulation is that of insurance. In German Alliance 
Insurance Company v. Ike Lewis, superintendent of insurance of 
Kansas, before the Supreme Court, 233 U. S. 389, 19 14, the issue 
was squarely presented, — is insurance a business of such a public 
nature as to justify the State in regulating its rates? Kansas in 
1909 passed "an act relating to fire insurance, and to provide for 
the regulation and control of rates of premium thereon, and to 
prevent discriminations therein." The statute provided that the 
superintendent of insurance might determine any rate to be either 
excessive or unreasonably high, or so low as to be inadequate to 
the safety of the company; he might then direct the company to 
make a lower or a higher rate respectively. Under this power 
the superintendent of insurance made a reduction of 12% in fire 
rates which was objected to by the company on the ground that 
insurance was a private business, not subject to the price fixing, 
rate regulating power of the State. The company laid special 
weight on the claim that the public right of regulation of rates 
existed only in those businesses where a general right of any person 
to demand and receive services was admitted. That is, it was 
confined to those industries such as the railway, the telephone 
or telegraph, the gas supply, etc., in which any individual had the 
right to claim the services and the facilities of the company upon 
paying the appropriate fee, and that in other businesses such as 
insurance, where the company was free to offer or refuse its service 
to any customer, no such right of rate fixing by State authorities 
existed. The company therefore urged that a State fixing of 
prices in a private business was a deprivation of the company's 
liberty and property contrary to the 14th Amendment. The 
Supreme Court held that insurance was a public business, that its 
various phases had been frequently regulated by the States for the 
sake of safety, that the amount of reserve to be deposited by the 
company, the form of policy and numerous other details had been 
fixed by law and that such regulation was admittedly within the 
State's power. The extension of these rules to include the fixing 
of rates was a matter of judgment for the legislature to decide. The 
14th Amendment in no wise forbade the rate regulation of a business 
of public interest. What determined when a business ceased to 
be private and became of public interest? The Court was unable 
to give any fixed, definite mark o\ this change. It refused to classify 
as public businesses only those which had a monopoly or those which 
had received from the public some special privilege. Justice Mc- 
Kenna who delivered the opinion took the broad ground that with- 
out either of these- distinguishing marks a business might become 
of public interest through the simple fact of its necessary Influence 
on great numbers oi the people. That the insurance COmp 
had such a close, necessary connection with the public welfare 



470 THE NEW AMERICAN GOVERNMENT 

was shown by the widespread, almost universal necessity of in- 
surance. " This demonstrates the interest of the public in it. . . . 
We can see, therefore, how it has come to be considered a matter of 
public concern to regulate it, and governmental insurance has its 
advocates and even examples. Contracts of insurance, therefore, 
have greater public consequence than contracts between individuals 
to do or not to do a particular thing whose effect stops with the in- 
dividuals. We may say in passing that when the effect goes be- 
yond that, there are many examples of regulation." The power to 
regulate being once admitted because of the public interest, it is 
merely a question of legislative policy whether the State shall in- 
clude in its regulation the fixing of rates. 

Freedom of Contract. — Property is acquired usually by contract. 
If Congress, or the Legislature, could take away from any person 
or corporation the right to make a contract, it would remove that 
person's ability to acquire property. This has now become so 
clearly and generally recognized that the Courts declare any law 
limiting the freedom of contract to be a violation of the Constitu- 
tion, unless it can be shown to present some exceptional or unusual 
features. What these exceptions are will be shown in the sections 
dealing with the Police Power. In Allgeyer v. Louisiana, 165 U. S. 
578; 1897, the Court, in referring to the Fourteenth Amendment, 
said (p. 589): 

"The liberty mentioned in that amendment means not only the 
right of the citizen to be free from the mere physical restraint of his 
person, as by incarceration, but the term is deemed to embrace the 
right of the citizen to be free in the enjoyment of all his faculties; 
to be free to use them in all lawful ways; to live and work where he 
will; to earn his livelihood by any lawful calling; to pursue any 
livelihood or avocation, and for that purpose to enter into all 
contracts which may be proper, necessary and essential to his 
carrying out to a successful conclusion the purposes above men- 
tioned." Liberty and property accordingly include the much 
discussed "freedom of contract" which is the right to make any 
contract that is not against the general policy of the country's 
laws. An arbitrary, unreasonable interference with this freedom, 
by the legislature, is a violation of liberty without due process. 
In Frisbie v. U. S., decided in 1895, 157 U. S. 160, the Court also 
explained some of the necessary limits of freedom of contract. The 
national pension laws, in order to protect pensioners from extor- 
tionate charges by attorneys, had provided that no person acting 
as an attorney or solicitor for an applicant should charge more than 
$10.00 as a fee. Frisbie was a lawyer who, as agent for Julia John- 
son, the widow of a soldier, had secured a pension but had charged 
more than the $10.00 allowed by law. When prosecuted and 
convicted he appealed to the Supreme Court on the ground that 
the Act was unconstitutional because it interfered with the price 
of labor and thereby violated the freedom of contract. This claim 



CONSTITUTIONAL PROTECTIONS 47 1 

the Court overruled and upheld his conviction as valid, saying — "It 
is within the undoubted power of government to restrain some indi- 
viduals from all contracts, as well as all individuals from some con- 
tracts. It may deny to all the right to contract for the purchase 
or sale of lottery tickets; to the minor the right to assume any 
obligations, except for the necessaries of existence; to the common 
carrier the power to make any contract releasing himself from negli- 
gence, and, indeed, may restrain all engaged in any employment 
from any contract in the course of that employment which is against 
public policy. The possession of this power by government in no 
manner conflicts with the proposition that, generally speaking, 
every citizen has a right freely to contract for the price of his labor, 
services, or property." 

Due Process of Law. — The fourth general query in our study of 
constitutional protection, how far may prices and rates be fixed 
by government, is further answered by the "due process" clauses 
of the Constitution. The National Government is forbidden by 
the Fifth Amendment to deprive any person of life, liberty or 
property " without due process of law." The State governments 
are forbidden by the Fourteenth Amendment, Section I, to deprive 
any person of life, liberty or property "without due process of law." 
The meaning of "due process" and the close relation of these 
clauses to business and personal rights may be more clearly under- 
stood by a glance at the British Constitution. In their long hard 
fight with King John of England the Barons who forced his signature 
to Magna Charta, had constantly before their eyes the arbitrary, 
unregulated exactions of the king, either by taxation or by unjust 
court procedure, or by the willful, unjustified seizure of private 
property by the sheriffs and other royal officers. This constant 
invasion of the rights of the individual by the king so harried 
and exasperated the property owners of the realm that they forced 
the monarch to promise in the Magna Charta that no freeman 
should be deprived of his liberty or property, except by the judg- 
ment of his peers. 1 

It is "liberty" in this sense which is meant by the Fifth and 
Fourteenth Amendments. Every individual must be free from re- 
straint of his person, and at liberty to use his faculties, to live and 
move and have his being in such ways as he will, SO long as he does 
not interfere with others. lie must have the right to enter into any 
lawful business, to make contracts for any Legitimate purpose and 
to work out his own ends in the ways that best please him. This 
does not mean that any person may use his property or his energies 
in such a way as to interfere, annoy or injure others. A man mav 

be a manufacturer, a singer, a chauffeur, an aviator, or a property 

rhe exact wording of (his much cited clause is " \o freeman shall be taken. 
imprisoned, disseised, outlawed, banished or any way destroyed, nor will we 
proceed againsl or prosecute him except b) lawful judgment of his poors, or the 

law of the land." 



472 THE NEW AMERICAN GOVERNMENT 

owner, in which case his liberty under the Fifth and Fourteenth 
Amendments to participate in these vocations or to enjoy his prop- 
erty is guaranteed to him without let or hindrance; neither the 
State nor the Federal Government may interfere with these, with- 
out violating the amendments. But when his manufacturing or 
his singing annoys neighbors who may not escape from it, when 
he drives his car in a crowded thoroughfare at high speed, or flies 
his aeroplane in ways that imperil the lives and convenience of 
others, or uses his property to the prejudice of the general welfare, 
his liberty ceases, and he becomes subject to regulation, and if 
he or his property are so regulated he cannot claim that the amend- 
ments have been violated. 1 

What is "due process of law" ? The meaning of this phrase has 
probably been disputed more than any other part of the Consti- 
tution. Briefly summarized it means, — (a) the right to a hearing 
before a tribunal, and (b) freedom from arbitrary, unreasonable 
legislative acts. Under (a) the courts have repeatedly declared 
that no man's property can be taken from him by a simple act of 
the legislature nor can he be imprisoned or deprived of his life or 
freedom without the proper judicial procedure. The courts have 
for centuries been the bulwarks of the individual against the op- 
pression of the government. Their procedure has often changed; 
court fees have been high, or low; the expenses of litigation have 
been great or small but always there has stood between government 
oppression and the citizen, the latter's right to his "day in court." 
Any legislative act which deprived a person of his property without 
this opportunity to be heard in court would not be "due process." 
On the other hand, we must remember too that court procedure 
must inevitably change. Some States have a jury trial for civil 
cases; others have not, yet both may be due process. Some States 
allow a majority verdict of the jury to prevail, while others require 
a unanimous verdict; either of these may be due process. There 
are certain fundamental features of the "day in court," or the 
right to a court hearing, which have been described in Twining v. 
New Jersey, 211 U. S. 78, as follows: 

The Court which renders the decision must be one having legal 
jurisdiction of the case. 

Full notice and opportunity for hearing must be given to the 
parties concerned. 

Any procedure which preserves these two principles is due process. 

In the National Government "due process" is more definitely 
fixed in its nature because the 5th and 6th Amendments prescribe 
in detail the rules of procedure to be followed, for example, a Grand 
Jury presentment, or indictment, in all criminal cases, a Petit Jury 
trial, the right to confront opposing witnesses, the right to compel 
witnesses to attend for the defence, etc. 2 In civil cases also the 

1 See the Chapter on The Police Power. 

2 The Grand Jury is usually a body of twenty-four men who hear sufficient of 



CONSTITUTIONAL PROTECTIONS 473 

U. S. Courts are obliged to grant a jury trial when the matter in 
controversy exceeds $20.00 in value. 

This first feature in due process; viz., the opportunity for a court 
hearing is observed with the greatest care both in this country and 
in England. It has one important exception, however, in the rela- 
tions of the government with its employes. In this field the courts 
have held both in England and here, that any government official 
whose accounts show a deficit, may have his property seized by the 
government authorities without the usual court procedure. A debt 
to the government takes precedence over all other claims in any 
circumstances and a government defaulter cannot claim ordinary 
judicial procedure under the due process clause when his goods are 
attached for the account which he owes to the government. This 
exception to the general principle was established in the interesting 
case of Murray's Lessee v. The Hoboken Land Co., 18 Howard, 
272; 1855. Here Samuel Swartwout, the notorious collector of 
customs of New York City in President Jackson's administration, 
defaulted, leaving a deficit in his accounts of over $1,000,000. This 
debt to the Treasury was collected by a summary levy in the form 
of a warrant of distress upon Swartwout's property, on order of the 
Treasury officials and the simple recording of a lien against his 
property without any suit or trial. The constitutionality of this 
seizure of Swartwout's land having been disputed under the due 
process clause, the case came to the Supreme Court and it was 
contended by Swartwout's successor in the ownership of the prop- 
erty that such a warrant was unconstitutional on the ground that 
it did not give the defendant due process of law in the form of a 
court hearing. The Supreme Court decided that the seizure was in 
accordance with due process because of the special fact that the 
funds in question were a balance due to the government in Swart- 
wout's accounts as a Treasury officer and that from the earliest 
times in England and in this country, the Treasury had occupied a 
special position in its claims on its employe's and their property. 
The seizure of the defaulter's land being solely for the purpose of 
reimbursing the Treasury for its losses, such action would be legal 
even though no court procedure was invoked. 

(b) The right to substantially just, reasonable and impartial 
laws is, in America, an equally important element in due process. 
If by an act of the legislature, a person lias been flagrantly and 
unjustly deprived of his liberty and property, such an act violates 
"due process" even though the courts afterward gave the injured 
person a jury trial. It is not due process for Congress or the State 
to take the property of a corporation, or a person, by reducing its 

the evidence againsl an accused person to determine whether there is a reason- 
able ground to hold him lor trial, it' the Grand Jury decides that there is 
sufficient .mound, the accusation is marked a " true hill" and turned over to the 

District Attorney for prosecution; if it decides not to hold the aeeused. the 
accusation is dropped, or "ignored." 



474 THE NEW AMERICAN GOVERNMENT 

or his earning power below a reasonable point, and it does not 
become due process even though the defendent or injured party is 
given an opportunity to contest the law in court. The law itself 
must not be unreasonable, extortionate, partial, or oppressive. If 
it prove to have any of these defects, it is not due process, regardless 
of whether it provides court procedure or not. For this reason ex- 
cessive taxation or regulative laws which prevent a recognized busi- 
ness from earning returns would both be violations of the due proc- 
ess clause, no matter what court procedure was applied in their 
interpretation. 

A brief but comprehensive and clear statement of the principle 
that due process includes both proper procedure and just, reasonable 
and impartial laws, is found in the Supreme Court's opinion in 
Hurtado v. California, no U. S. 535; 1883. Hurtado had com- 
mitted murder; for this he was tried under a section of the California 
constitution which provided that persons accused of crime might 
be held for trial in either one of two ways, — a Grand Jury indict- 
ment, or a process known as an "information." The latter con- 
sisted of a hearing before a magistrate with opportunity for the 
defendant to present evidence. If the magistrate who conducted 
the examination decided that there was sufficient evidence to hold 
the accused, he could be tried in the usual way by a jury. It was 
under this " information " process that Hurtado was held for trial, 
but he claimed that the " information " was not constitutional since 
due process required a Grand Jury indictment. The Supreme Court 
held that this was true of the 5th and 6th Amendments of the 
Constitution, which described due process in detail and which 
applied to the Federal Government, but that it was not true of due 
process as required in the 14th Amendment, which applied to the 
State governments; and accordingly Hurtado could be held for 
trial by the State of California, without a Grand Jury indictment. 
The Court showed that the 14th Amendment fixes no set procedure 
for the States, but allows them to have free sway so long as they do 
not deprive the accused of his hearing in court. It then takes up the 
question of whether due process also protects the accused against 
unreasonable, arbitrary and oppressive laws, entirely aside from 
methods of judicial procedure, and declares, — 

"But it is not to be supposed that these legislative powers are 
absolute and despotic, and that the amendment prescribing due 
process of law is too vague and indefinite to operate as a practical 
restraint. It is not every act, legislative in form, that is law. Law 
is something more than mere will exerted as an act of power. It 
must be not a special rule for a particular person or a particular 
case, but, in the language of Mr. Webster, in his familiar definition, 
'the general law, a law which hears before it condemns, which 
proceeds upon inquiry, and renders judgment only after trial,' so 
' that every citizen shall hold his life, liberty, property and immu- 
nities under the protection of the general rules which govern 



CONSTITUTIONAL PROTECTIONS 475 

society,' and thus excluding, as not due process of law, acts of 
attainder, bills of pains and penalties, acts of confiscation, acts 
reversing judgments, and acts directly transferring one man's estate 
to another, legislative judgments and decrees, and other similar 
special, partial and arbitrary exertions of power under the forms of 
legislation. Arbitrary power, enforcing its edicts to the injury of 
the persons and property of its subjects, is not law, whether mani- 
fested as the decree of a personal monarch or of an impersonal 
multitude. And the limitations imposed by our constitutional law 
upon the action of the governments, both State and National, are 
essential to the preservation of public and private rights, notwith- 
standing the representative character of our political institutions." 

In the important case already cited, Hurtado v. California, 
no U.S. 535; 1883, the Court also said, "It must be conceded 
that there are some rights in every free government beyond the 
control of the State. A government which recognized no such 
rights, which held the lives, the liberty, and the property of its 
citizens subject at all times to the absolute disposition and un- 
limited control of even the most democratic depository of power, is 
after all but a despotism. It may be doubted, if a man is to hold 
all that he is accustomed to call his own, all in which he has placed 
his happiness and the security of which is essential to that happi- 
ness, under the unlimited dominion of others, whether it is not wiser 
that this power should be exercised by one man than by many." 

The Right to Federal Jurisdiction. — One of the strong protec- 
tions of national commerce against State interference has been the 
privilege given to all persons to remove suits from the State courts 
to the Federal tribunals when the parties were citizens of different 
States. Article III of the Constitution provides that the Federal 
courts shall have jurisdiction in suits between the citizens of differ- 
ent States. The purpose of this was to get an impartial tribunal 
unaffected by local prejudice or favoritism. Most of the large 
interstate companies are able to invoke the Federal jurisdiction 
because of difference of citizenship. And in recent years the State 
governments have attempted to block this appeal to the national 
courts, — some of them providing that no foreign corporation could 
transact business within the State if it removed local suits to the 
Federal courts. These State laws have raised a serious question as 
to the power of the Federal Government to protect interstate com- 
panies, — a question which was finally settled in Harrison v. The 
St. Louis and San Francisco Railway Co., decided by the Supreme 
Court 232 U. S. 318, 1014. The State of Oklahoma had provided 
that the permit or license to transact business which had been 

issued to any foreign corporation acting within the State, should be 

revoked and cancelled if such corporation removed suits from the 
State courts. The railway company, having been sued by a 
citizen of Oklahoma, removed the suit to the federal eourts on the 
plea that the company was a citizen of another State and therefore 



476 THE NEW AMERICAN GOVERNMENT 

entitled to the Federal jurisdiction. In doing so, it had violated 
the Oklahoma law above described, and its franchise or permit to 
transact business within the State was promptly cancelled by 
Harrison, the Secretary of the State. The company thereupon ap- 
pealed to the Supreme Court, claiming that the State law was un- 
constitutional since it deprived the company of its rights to the 
Federal jurisdiction as guaranteed by Article III of the Constitu- 
tion. The Court ruled that the law was clearly invalid, conflicting 
with the Federal Constitution and the national acts governing 
removal of cases to the Federal courts. "It may not be doubted 
that the judicial power of the United States as created by the 
Constitution and provided for by Congress pursuant to its constitu- 
tional authority is a power wholly independent of State action, and 
which therefore the several States may not by any exertion of 
authority in any form, directly or indirectly, destroy, abridge, limit, 
or render inefficacious. The doctrine is so elementary as to require 
no citation of authority to sustain it." 

When is a Corporation Deprived of Its Property? — These deci- 
sions lead to the further very practical question which is constantly 
reappearing under our laws — when is a person or a corporation 
deprived of its property? Whenever a government authority, 
in regulating enterprises such as railways, telephones, ferries, 
lighting and other public service companies, fixes a charge which 
is so low as to reduce the earnings below the usual rate of return on 
such investments, the courts hold that the company has been 
deprived of its property and the Constitution thereby violated. 
Governing bodies and commissions may reduce rates to a level 
that is reasonable, so long as they allow the corporation to earn 
a fair return on its invested capital. What percentage this return 
must be has never been definitely fixed. The question presented 
to the courts is always this — under the regulation in question 
can a fair rate of income be earned on the investment? The courts 
decide that the rate either is or is not excessively low. In general 
if the corporation can make a five or six per cent return the courts 
will not declare that its property has been taken without due 
process of law, provided the other features of the regulation are 
also reasonable. The public service commissions of the States and 
the Interstate Commerce Commission are constantly fixing rates, 
but in doing so they are forced to observe this feature of the Con- 
stitution with the greatest care. Were it not for these clauses 
the commissions of some States might so harass public service 
companies by their regulations as to destroy the earning power 
and thereby drive capital out of the business. These clauses have 
been a strong bulwark of protection against unjust and oppressive 
regulation. 1 

1 Dean Hall has well said — Constitutional Law, page 135 — "Deprivation of 
property may take place in a variety of ways besides sheer confiscation. The 
State may place such restrictions upon the possession, use, or the transfer of 



CONSTITUTIONAL PROTECTIONS 477 

A good example is presented in Smythe v. Ames decided in 1898, 
169 U. S. 466. Here the legislature of Nebraska had passed various 
acts regulating the railways and authorizing a State board to fix 
passenger and freight rates, etc. The companies complained that 
their charges were, under this act, reduced to such a low point as to 
prevent them from making a reasonable return on their property 
and that they were thereby deprived of their property without due 
process of law. They showed that the reduction in rates on local 
hauls within the State amounted to about 29%, which would di- 
minish their revenues from local business to a point below their 
operating expenses and thereby wipe out their earning power on 
business within the State. The Court said: — "These principles 
must be regarded as settled : 

"1. A railroad corporation is a person within the meaning of 
the Fourteenth Amendment, declaring that no State shall deprive 
any person of property without due process of law, nor deny to 
any person within its jurisdiction the equal protection of the laws. 

" 2. A State enactment, or regulations made under the authority 
of a State enactment, establishing rates for the transportation of 
persons or property by railroad, that will not admit of the carrier 
earning such compensation as under all the circumstances is just 
to it and to the public, would deprive such carrier of its property 
without due process of law and deny to it the equal protection 
of the laws, and would therefore be repugnant to the Fourteenth 
Amendment of the Constitution of the United States." 

5. Regulation of Service. — The important principle just de- 
scribed applies not only to the rates which the railways, etc., may 
charge, but also to the service and facilities which the government 
may require of the railways, such as fitting trains with automatic 
brakes, providing a frequent train service, etc. Here again the ex- 
pense imposed upon the corporation by a government regulation 
might reach such a point as to interfere with the earning of a reason- 
able dividend. The corporation would then be deprived of its 
property without due process of law. In order to find out if a 
certain sum of net earnings of a corporation is a fair return on its 
business we must know what its total investment is. The measure- 
ment of the investment, upon which the rate of return shall be 
calculated, is not as simple as it first appears. The Supreme Court 
has held that the basis of calculation is the fair value of the property 
being used by the corporation for the convenience of the public. 
And in order to ascertain that value, " the original cost oi construc- 

property as to amount to a deprivation oi some or all oi its essential incidents. 
Legislation may attempt to change the character of an owner's title to property, 
or to compel special expenditures on account of the ownership or control of 
certain kinds of property, or to enlarge the owner's liability for damage resulting 

from the condition or use of property, or to limit the owner's remedies for in- 
fringement of property rights, if even such small interferences with property 

rights are merely arbitrary, and do not sen e any reasonable or legitimate public 
purpose, they may be declared unconstitutional." 



g *■ 



478 THE NEW AMERICAN GOVERNMENT 

tion, the amount expended in permanent improvements, the 
amount and market value of its bonds and stock, the present as 
compared with the original cost of construction, the probable 
earning capacity of the property under the rates prescribed by law, 
and the sum required to meet operating expenses, are all matters 
for consideration, and are to be given such weight as may be just 
and right in each case. We do not say that there may not be other 
matters to be regarded in estimating the value of property. " 
Smyth v. Ames, 169 U. S. 466. 

Are other Rights of Corporations Protected? — The general prin- 
ciples governing the regulation of corporations is that interstate 
commerce is subject to Federal regulation; other business is subject 
to the regulation of the State in which it is transacted. If the State 
of Delaware charters a corporation to refine oil or to manufacture 
tobacco, that corporation may only enter other States with its 
manufacturing business after securing the permit of such other 
States, that is, by complying with their laws passed to regulate 
such business. Its existence as a corporation in Delaware does not 
give it the right to transact business in New York or Pennsylvania 
without the permission of those commonwealths. The corporation 
is a "person" 1 but it does not possess all the protection which the 
individual natural person enjoys under the Constitution. For 
example, its officials may be compelled to testify in suits against 
the corporation, it has no personal " liberty," in the same sense 
that the natural person has, it is a person with power to transact 
business in the State which created it, but it may be refused 
entrance to other States, although it may not be deprived of its 
property without "due process of law." 

6. Class Legislation. — The Fourteenth Amendment, Section I, 
provides that no State shall "deny to any person within its juris- 
diction the equal protection of the laws." This clause is the great, 
safeguard against class legislation of the States. The danger of 
discrimination is constantly present in the modern State legislature. 
Such a body is always beset by influences which demand special 
favors, privileges and exemptions from the law. So many of these 
have been granted in the past by the legislatures that most of the 
constitutions now forbid special legislation. The Fourteenth 
Amendment, which as we have seen was passed to protect the Ne- 
groes against hostile and discriminatory laws, has been broadened 

1 In Santa Clara v. The Southern Pacific R. R. Co., 118 U. S. 394; 1886, it 
was claimed that a tax levied by the State of California was a denial of equal 
protection of the law to persons within the State and that the Southern Pacific 
Railway Corporation was a person in the sense of the 14th Amendment. An 
extensive brief was prepared by the railway attorneys on this point, but before 
argument was begun the Chief Justice said: "The Court does not wish to hear 
argument on the question whether the provision in the 14th Amendment to the 
Constitution, which forbids a State to deny to any person within its jurisdiction 
the equal protection of the laws, applies to these corporations. We are all of 
opinion that it does." 



CONSTITUTIONAL PROTECTIONS 479 

in its interpretation little by little. Its protection is no longer 
confined to Negroes but now includes all races, foreigners or other 
persons, and even corporations in its scope; it has been interpreted 
by the courts to forbid any State laws which create arbitrary, 
unreasonable or unnatural distinctions between individuals or be- 
tween different classes of people, conferring on some, special priv- 
ileges which are denied to others, or visiting some with disadvantages 
or penalties which are not imposed on others. May certain persons 
be denied the right to sue in the courts? Clearly not, since such a 
law would be a discrimination or denial of equality. May foreigners 
be denied the equal protection of the laws? The Constitution in 
this clause protects any "persons," the word used is not "citizens," 
but "persons." Equal protection, therefore, extends to the alien. 
A child labor law of the State of Pennsylvania which required an 
educational test that was to be differently satisfied by foreign-born 
children than those born in this country, was declared unconstitu- 
tional for this reason. The law was held to be an inequality or 
discrimination, and a denial of equal protection, inasmuch as the 
arrangement for the test of foreign-born children was much more 
difficult than for the native born. In Yick Wo v. Hopkins, 1 18 U. S. 
356; 1885, the city of San Francisco had by municipal ordinance 
provided that no laundries should be established in frame dwellings 
without the permit or certificate of a city inspector. The ostensible 
reason for this ordinance was to prevent fire in the frame dwelling 
section, and to protect the health of the community. The ordi- 
nance itself, if fairly enforced, was constitutional, but the city in- 
spector in granting permits to laundries discriminated sharply 
between the Chinese and natives; 200 Chinese being denied permits, 
while 80 natives who applied were all given the required certificate. 
The real purpose of the local administration seemed to be to pre- 
vent the Chinese from engaging upon equal terms in the laundry 
business. This unequal, discriminating execution of the law was 
held to be unconstitutional, and Yick Wo and several other Chinese 
who had been imprisoned under the ordinance were released upon 
an appeal to the Supreme Court. Said the Court: — 

"Though the law itself be fair on its face and impartial in ap- 
pearance, yet, if it is applied and administered by public authority 
with an evil eye and an unequal hand, so as practically to make 
unjust aAd illegal discriminations between persons in similar cir- 
cumstances, material to their rights, the denial of equal justice 
is still within the prohibition of the Constitution. . . . 

"It appears that both petitioners have complied with every re- 
quisite, deemed by the law or by the public officers charged with 
its administration, necessary tor the protection of neighboring 
property from tire, or as a precaution against injurs- to the public 
health. No reason whatever, except the will oi the supervisors, 

is assigned why they should not he permitted to cany on. in the 
accustomed manner, their harmless and useful occupation, on which 



480 THE NEW AMERICAN GOVERNMENT 

they depend for a livelihood. And while this consent of the super- 
visors is withheld from them and from two hundred others who 
have also petitioned, all of whom happen to be Chinese subjects, 
eighty others, not Chinese subjects, are permitted to carry on the 
same business under similar conditions. The fact of this discrimi- 
nation is admitted. No reason for it is shown, and the conclusion 
cannot be resisted, that no reason for it exists except hostility to 
the race and nationality to which the petitioners belong, and which 
in the eye of the law is not justified. The discrimination is, there- 
fore, illegal, and the public administration which enforces it is a 
denial of the equal protection of the laws and a violation of the 
Fourteenth Amendment of the Constitution. The imprisonment 
of the petitioners is, therefore, illegal, and they must be discharged." 

Does "Equal Protection" apply as against the class laws passed 
by the United States government? The Fourteenth Amendment 
protects the people only against the States. Would a discriminatory 
law, if passed by the Federal Congress, be constitutional? While 
nothing is said in the Constitution as to the equal protection of 
national laws, class legislation would probably be declared uncon- 
stitutional by the Supreme Court on the ground that being arbitrary 
and oppressive it deprived persons of their liberty and property 
without "due process of law." The broad scope which has already 
been given to the due process clause would undoubtedly justify 
such a rule. It is probable that while the exact words "equal pro- 
tection" are not contained in the 5th Amendment yet their spirit 
is contained in the "due process" section and to that extent equal 
protection applies also as against the Federal Government, although 
to a less extent. 

In practice the State legislature is obliged to classify occupations 
as safe or dangerous, as proper for persons under age or not, or as 
subject to special State regulation such as railways, or banks, or 
insurance companies, — and to enact legislation for each of these 
classes. But it is unconstitutional for the State to single out an es- 
tablishment, a factory, a bank or a railway and regulate it differently 
from the others or to classify businesses in such an arbitrary un- 
natural way as to practice favoritism. In Connolly v. Union Sewer 
Pipe Company, 184 U. S. 540; 1902, an attempt had been made by 
the legislature of Illinois to pass an Anti-Trust law, which would 
prohibit combinations among all producers to restrict competition, 
but which excepted from this rule the producers of farm products 
or livestock. Here the U. S. Supreme Court declared that the legis- 
lature, in excepting farmers from the Anti-Trust law of the State, 
had not classified businesses in any proper sense but had shown an 
arbitrary desire to exclude, in an unreasonable way, a particular class 
of producers from the action of a general law. The law was therefore 
declared invalid as violating the "equal protection" clause of the 
Fourteenth Amendment. 

Exemption of Laborers from State Anti-Trust Laws. — But if 



CONSTITUTIONAL PROTECTIONS 48 1 

farmers cannot be exempted from the operation of such an Act, 
can labor unions? One acknowledged purpose of all unions and 
associations of workingmen is to raise wages; they are therefore 
combinations to increase the price of labor. Does a State law which 
forbids producers and sellers to combine for the purpose of lessening 
competition and influencing prices, conflict with the equal protection 
clause of the 14th Amendment if it exempts workingmen from its 
application? This was the question presented in International 
Harvester Company v. Missouri, decided June 8, 19 14. Here the 
State statute of 1909 had forbidden producers or sellers to combine 
in the way mentioned but it contained an express exception of la- 
borers and their associations. The Harvester Company being prose- 
cuted under the Act claimed that the exception was an unequal 
treatment of two classes of producers — laborers and manufacturers — 
and that this inequality, being forbidden by the 14th Amendment, 
rendered the State law unconstitutional and void. This view, how- 
ever, the Supreme Court refused to endorse. Justice McKenna who 
delivered the opinion held that a simple inequality or difference 
in the laws does not constitute an unfair or illegal discrimination. 
The legislature must be allowed to use its judgment within reasonable 
limits as to which facts or class of facts required regulation. The 
Harvester Company had protested that laborers, even domestic 
servants and nurses, could combine, and that the law was unfair 
and discriminatory in forbidding some classes of producers, but 
not all, to combine, "and because these are not embraced in the law, 
plaintiff in error, it is contended, although a combination of companies 
uniting the power of $120,000,000, and able thereby to engross 85 
per cent or 90 per cent of the trade in agricultural implements, is 
nevertheless beyond the competency of the legislature to prohibit. 
As great as the contrast is, a greater one may be made. Under the 
principles applied, a combination of all the great industrial enter- 
prises (and why not railroads as well?) could not be condemned 
unless the law applied as well to a combination of maidservants or 
to infants' nurses, whose humble functions preclude effective com- 
bination, Such contrasts and the considerations they suggest must 
be pushed aside by government, and a rigid and universal classifica- 
tion applied, is the contention of plaintiff in error; and to this the 
contention must come. Admit exceptions, and you admit the power 
of the legislature to select them. Hut it may be said the comparison 
of extremes is forensic, and, it may be, fallacious; that there may 
be powerful labor combinations as well as powerful industrial com- 
binations, and weak ones of both, and that the law, to he valid, can- 
not distinguish between strong ami weak offenders. This may be 
granted, but the comparisons are no! without value in estimating 
the contentions oi plaintiff in error. The foundation oi our decision 
is, of course, the power o\ classification which a legislature mav ex- 
ercise, and the cases we have cited, as well as others which may be 
cited, demonstrate that some latitude must be allowed to the legis- 



482 THE NEW AMERICAN GOVERNMENT 

lative judgment in selecting the 'basis of community.' We have 
said that it must be palpably arbitrary to authorize a judicial re- 
view of it, and that it cannot be disturbed by the courts ' unless they 
can see clearly that there is no fair reason for the law that would 
not require with equal force its extension to others whom it leaves 
untouched."' The classification being reasonable was upheld. 

"Equal protection" does not mean that all businesses must be 
subject to precisely the same regulation, but that the classification 
must be reasonable and that every enterprise within the same class 
of business must be equally treated. An especially dangerous busi- 
ness such as powder manufacture may be subjected to special safety 
regulations; and establishments which cause annoying odors, as 
soap or fertilizer factories, may well be declared a nuisance and 
required to remove from the vicinity of a crowded section while 
other factories in other classes of business are allowed to remain. 
This is not depriving the owner of the fertilizer or powder factory 
of equal protection. (See Northwestern Fertilizer Company v. Hyde 
Park, 97 U. S. 659; 1878.) Nor does it mean that every person must 
be treated by the public authorities in precisely the same way as all 
other persons in the State. For example, a foreigner in many States 
may not vote nor serve on a jury, nor be enrolled in the militia; 
insane persons are not allowed to roam freely at will; children are 
subjected to school laws; women are not allowed to work more than 
ten hours daily in a factory, yet these are not deprived of the equal 
protection of the law, so long as all in the same class are treated alike. 
An admirable summary of the entire doctrine of equal protection 
is given by the Court in Barbier v. Connolly, 113 U. S. 27; 1885, as 
follows: — 

"The Fourteenth Amendment, in declaring that no State 'shall 
deprive any person of life, liberty, or property without due process 
of law, nor deny to any person within its jurisdiction the equal pro- 
tection of the laws,' undoubtedly intended not only that there should 
be no arbitrary deprivation of life or liberty, or arbitrary spoliation 
of property, but that equal protection and security should be given 
to all under like circumstances in the enjoyment of their personal 
and civil rights; that all persons should be equally entitled to pursue 
their happiness and acquire and enjoy property; that they should 
have like access to the courts of the country for the protection of 
their persons and property, the prevention and redress of wrongs, 
and the enforcement of contracts; that no impediment should be 
interposed to the pursuits of anyone except as applied to the same 
pursuits by others under like circumstances; that no greater burdens 
should be laid upon one than are laid upon others in the same calling 
and condition, and that in the administration of criminal justice 
no different or higher punishment should be imposed upon one than 
such as is prescribed to all for like offences. But neither the amend- 
ment — broad and comprehensive as it is — nor any other amendment 
was designed to interfere with the power of the State, sometimes 



CONSTITUTIONAL PROTECTIONS 483 

termed its police power, to prescribe regulation to promote the 
health, peace, morals, education, and good order of the people, and 
to legislate so as to increase the industries of the State, develop its 
resources, and add to its wealth and prosperity. From the very 
necessities of society, legislation of a special character, having these 
objects in view, must often be had in certain districts, such as for 
draining marshes and irrigating arid plains. Special burdens are 
often necessary for general benefits, — for supplying water, prevent- 
ing fires, lighting districts, cleaning streets, opening parks, and 
many other objects. Regulations for these purposes may press with 
more or less weight upon one than upon another, but they are de- 
signed, not to impose unequal or unnecessary restrictions upon 
anyone, but to promote, with as little individual inconvenience as 
possible, the general good. Though, in many respects, necessarily 
special in their character, they do not furnish just ground of com- 
plaint if they operate alike upon all persons and property under the 
same circumstances and conditions. Class legislation, discriminating 
against some and favoring others, is prohibited; but legislation 
which, in carrying out a public purpose, is limited in its application 
if within the sphere of its operation it affects alike all persons simi- 
larly situated, is not within the amendment. ..." 

Another very interesting example of the new meaning which is 
being placed on " equal protection" is found in the ruling of the 
Supreme Court on the anti-trust law of South Dakota, of 1907. The 
State legislature had provided that anyone engaged in the manufac- 
ture or distribution of a commodity in general use, who inten- 
tionally, for the purpose of destroying a competitor, discriminates 
between different sections of the State by selling the product at a 
lower rate in one section than in another, cost of transportation 
being considered, shall be guilty of unfair discrimination. The 
Central Lumber Company to whom the law was applied by the 
State, attacked the constitutionality of the Act on the ground that 
it was class legislation and was in itself a discriminatory law of the 
most obnoxious type, in that it applied only to certain persons and 
corporations of a particular kind, namely, those who sold goods in 
two places in the State, while other persons and corporations with 
the same capital in the same business, and doing the same amount 
of trade, would not be governed by the law, if they did not sell goods 
in two places. This, the company claimed, was an unwarranted 
discrimination which deprived it of the equal protection oi the laws. 
The U. S. Supreme Court held, in Central Lumber Company ;. 
South Dakota, 226 U. S. 157; ioi.\ that if a particular class of com- 
panies or individuals is engaged in doing something which is con- 
demned by public sentiment, and is making a wrongful and harmful 
use of its opportunities, to interfere with the freedom oi competition 
within the State, the Fourteenth Amendment would not prohibit 
the legislature from dealing with this particular evil eveu though 
in order to do so, the legislature must establish a new ela>s oi persons 



484 THE NEW AMERICAN GOVERNMENT 

and companies, namely, those transacting business in two places 
in the State. "The recoupment in one place of losses which were 
incurred in another part of the State may be merely an instance of 
financial ability to compete, but it may also be what the legislature 
felt that it was, a means of destroying the benefits of competition by 
wiping out competitors, and as such it may do more harm than good. 
If the legislature feels this to be so, and finds that the danger arises 
from a particular class of business concerns, viz., those transacting 
business in two or more places within the State, it may very properly 
provide by law that no members of this class shall engage in the evil 
practice mentioned. Such an Act would apply equally to all the 
members of the class in question and would afford them the equal 
protection of the law in the sense of the Constitution." 

The Federal Commerce Clause as a Protection Against State 
Interference. — In our dual system of Government the States are 
constantly attempting to overstep the sphere of authority set for 
them in the Constitution, and to interfere with business and prop- 
erty by well-intended laws and regulations. These laws, however^ 
often work great confusion and harm in the business world, anw 
serve no useful purpose whatever. Many of them are clearly 
contrary to the letter and the spirit of the Constitution and are 
therefore invalid. We have seen that the commercial interests of 
the country strongly supported the adoption of the Constitution a 
century and a quarter ago, and urged that the new National Govern- 
ment should have the exclusive authority to regulate national and 
interstate trade. In doing so they were seeking to protect commer- 
cial interests against State interference. Accordingly the commerce 
clause of Article 1, Section 8, is to-day one of the strong bulwarks of 
protection of business interests against improper State regulation, 
and the business community in general looks with an unfavorable 
eye upon any attempt of the States to extend their power over 
national commerce. The Supreme Court, as we have seen in con- 
sidering the Federal regulation of commerce, has not divided the 
Federal and State powers as sharply and clearly as might be 
desired. It has at various times allowed the commonwealths con- 
siderable liberty to interfere with general trade, and has to this 
extent limited and impaired the protection which the commerce 
clause gives to interstate business. We may form an idea of the 
present extent of this protection from the following review of 
decisions covering a wide range of businesses and occupations: 

A State may regulate pilotage, harbor buoys, channel markers, 
and other local matters in the absence of Federal regulation. 
Cooley v. The Port Wardens, 12 Howard, 229; 185 1. 

It might, until 1899, regulate even the erection and management 
of drawbridges over navigable interstate streams. 

It might establish local rules governing the lights to be displayed 
by vessels in a harbor. The Frigate Gray v. The Ship Fraser, 2j 
Howard, 184; 1859. 



CONSTITUTIONAL PROTECTIONS 485 

It may authorize the construction of a drainage and power dam 
across a small creek, even though that creek is sometimes entered 
by a sloop coming from another State. Willson v. The Marsh 
Company, 2 Peters, 245. 

It may require all railway trains running in the State to abolish 
coal stoves on passenger cars and may apply this rule even to 
interstate trains until Congress acts. N. Y., N. H. & H. R. R. v. 
New York, 165 U. S. 628; 1897. 

It may set up tests of vision and color blindness for railway 
engineers, and apply these tests even to those who drive engines on 
interstate trains within the State. Smith v. Alabama, 1 24 U. S. 465 ; 
1888. 

It may forbid the sale of cigarettes in the State and apply the 
prohibition to small packages brought in from another State, and 
offered for sale as original packages. Austin v. Tennessee, 179 
U. S. 343; 1900. 

It may even forbid the sale within its borders of deceptively 
colored oleomargarine and imitations of butter, and apply the rule 
to oleomargarine imported from another State. Plumley v. Mass., 
155 U.S. 461; 1895. 

But it may not prevent the sale in original packages of oleomar- 
garine brought in from other States, if not colored to resemble but- 
ter, nor sold under fraudulent misrepresentation. Schollenberger 
v. Penna., 171 U. S. 1; 1898. 

A State may provide, for the convenience of its people, that all 
railways in the State must stop at least three trains daily each 
way, at cities and towns on its line, which have a population of 
three thousand or over, and where a sufficient number of local 
trains are not provided it may require an interstate train to stop 
at such towns, in order to make the required number of three. 
L. S. & M. S. v. Ohio, 173 U. S. 285; 1899. 

But it may not compel an interstate railway to stop all its regular 
passenger trains at county seats located on its line, since this would 
be a serious interference with interstate commerce which might 
readily be avoided by a more reasonable regulation. C, C, C. & 
St. L. v. Illinois, 177 U. S. 514; 1900. 

Nor may a State require the stopping of a fast through interstate 
train at a small hamlet or village, when such village could be 
adequately served by a. regulation of local trains. The Atlantic 
Coast Line v. R. R. Commissioners of South Carolina, 207 U. S. 
328; 1907. 

A State may not, without the consent of Congress, prevent the 
importation of intoxicating Liquors from another State, nor their 
sale in original packages inside* its borders, l.eisy v. Hardin. 135 
U. S. 100; 1S00. But it may regulate such sale in original packages 
when Congress expressly permits it to do so. In re Rahrcr. [40 
U.S. 545; 1S01. 

Nor may a State regulate interstate commerce by requiring 



486 THE NEW AMERICAN GOVERNMENT 

persons who wish to bring such commerce into the State, to register 
and pay a fee to the State Treasurer. International Text Book v. 
Pigg, 217 U. S. 91: 1910. 

7. Other Safeguards Against Government Interference. — Be- 
sides the above-mentioned protections of business and personal 
rights there is also the protection of the privileges and immunities 
of citizens of the United States against State action. The 14th 
Amendment, Section 2, provides that "no State shall make or 
enforce any law abridging the privileges and immunities of citizens 
of the United States." We have already seen in surveying other 
Constitutional Protections, the origin and purpose of this section. 
But it overshot the mark in threatening to place all citizens under 
the protection of the Federal Government. The ominous words in 
the last section of the amendment "Congress shall have power to 
/enforce the provisions of this Article by appropriate legislation," 
seemed to empower Congress to intervene actively in State matters 
and threatened to wipe out the powers of the States at a single 
stroke. What could not Congress undertake in legislating to 
protect citizens of the United States against State action? Would 
not the entire business and civil rights of the people be henceforth 
regulated by National, not State, legislation? These questions were 
answered by the Supreme Court in the Slaughter House cases, 16 
Wallace, 36; 1873, and Civil Rights cases, 109 U. S. 3; 1883. In the 
Slaughter House controversy the State of Louisiana had conferred 
upon the Crescent City Live Stock Company a monopoly of the 
slaughter house business within the city of New Orleans. A number 
of independent butchers complained that they were thereby pre- 
vented from carrying on their business within the city limits and 
in a suit which was carried to the Federal Supreme Court they 

- claimed that in so doing the State had deprived them of the "priv- 
ileges and immunities of citizens of the United States," contrary 
to the clause of the Constitution above mentioned. They set forth 
that it was certainly the right of a citizen of the United States to 
engage in business and that whenever a State deprived him of this 

bright it violated the Fourteenth Amendment. The answer of the 
Supreme Court shows in an illuminating way the methods by which 
our courts are often obliged to give a new meaning to the words of 
the Constitution in order to prevent such words from becoming too 
drastic or revolutionary in their scope. The Court declared that 
it was not the purpose of the Fourteenth Amendment to blot out the 
State governments nor to place them at the mercy of Congress nor 
even to give Congress control over all the business regulation of 
the country, but only to authorize Congress to prevent violations 
by the States of the rights of United States citizens. There are, 
said the Court, two kinds of citizenship, — State, and National. 
Citizens of the United States residing in any State enjoy the rights 
of both State and U. S. citizenship. What was the difference 
between these two classes of rights? In general a man's rights as a 



CONSTITUTIONAL PROTECTIONS 487 

State citizen were those which he derived from the State constitu- 
tion and .the State legislature. On the other hand, the rights of a 
United States citizen were those derived from the Federal Constitu- 
tion and the Federal laws and treaties. " Generally speaking," said 
the Court, "we may ascertain whether a given right is a right of a 
State or U. S. citizen by tracing it to its source. If its source is in 
the Constitution and laws of the United States we must look to the 
National Government for its protection. If it be founded on State 
constitutions and State laws, we must look to the State govern- 
ments for its protection." 
Some illustrations of these two classes of rights are as follows: 

Rights of Rights of 

U. S. Citizenship State Citizenship 

To come to the seat of government To secure protection from the State 

to transact business with the National government. 

Government, to seek its protection, To acquire and possess property of 

share its offices, to enjoy access to every kind. 

its seaports and to the sub-treasuries, To pursue their happiness subject 

land offices and courts of justice. to State legislation for the general 

Crandall v. Nevada, 6 Wallace, 35; good. Corfield v. Coryell, 4 Wash. 

1865. t C.C. 371; 1823. 

To demand the care and protection To engage in business. 

of the Federal Government over his To maintain suits in State courts, 

life, liberty and property when he To enjoy the general rights of State 

is on the high seas or abroad. citizens when resident in other 

To use the navigable waters of the States. 
United States and to secure the 
privileges guaranteed to American 
citizens by National treaties. 

To acquire State citizenship upon 
acquiring a domicile or residence 
within the State. 

Applying this to the Slaughter House cases, the right to engage in 
the business of butchering, the Court found to be based on State 
laws. It was therefore a right of State citize nship and was protected 
by the State, not by the United States. If Louisiana decided to reg- 
ulate sanitary conditions by limiting the general freedom of its 
citizens to engage in the abbatoir business, it could do so, and its 
action did not in any way violate the rights o\ United States citizen- 
ship under the Fourteenth Amendment. This sweeping decision 
had the immediate effect of re-establishing the State control over 
domestic business and personal rights. 

Does the Constitution Protect One Person as Against the Acts of 
Another? — We must remember that the Fourteenth Amendment 
forbids States, not individuals, from violating the rights o\ other 
persons. If one individual deprives another of his property or liberty, 
illegally, the remedy is to appeal to the State laws, not to the Four- 
teenth Amendment, which applies only to the State 
An example of this principle is shown by the unconstitutional national 

Act of May 31, lS;o ; which was passed to enforce the Fourteenth 



488 THE NEW AMERICAN GOVERNMENT 

Amendment; here Congress had provided that citizens of the United 
States should be free from intimidation, injury or oppressions while 
in the exercise of their rights under the Constitution and Federal 
laws, and that if any person should interfere with that freedom, or 
attempt to injure, oppress, or intimidate a citizen, to prevent his 
enjoyment of his rights under the Constitution, such persons should 
be guilty of a felony and liable to fine and imprisonment. A viola- 
tion of this statute had occurred in Louisiana through the interference 
of a band of white persons with a number of colored people who 
were about to hold a meeting. The whites were arrested and prose- 
cuted under the Federal Act mentioned, and were charged with 
conspiring to intimidate citizens of the United States who wished 
to avail themselves of the right of assembly. The case being taken 
to the United States Supreme Court, U. S. v. Cruikshank, 92 U. S. 
542; 1876, it was decided that the whites could not be convicted 
under the Act, because the Fourteenth Amendment, which the Act 
was designed to enforce, did not protect citizens of the United States 
from interference or intimidation by other persons, but from such 
interference by the State governments. The amendment declares that 
"no State shall deprive." When a disorder occurs in which citi- 
zens of the United States are injured or their rights violated, it is 
therefore clear that their proper protection is not in the Fourteenth 
Amendment, unless the State government is clearly implicated in 
the attempt to interfere with their rights as citizens of the United 
States. If the disorder or injury is caused by other persons the 
Fourteenth Amendment clearly does not apply. It "adds nothing 
to the rights of one citizen as against another. It simply furnishes 
an additional guaranty against any encroachment by the States 
upon the fundamental rights which apply to every citizen as a mem- 
ber of society." An equally interesting problem was presented in 
the Civil Rights cases, 109 U. S. 3; 1883. Here Congress had passed 
a law to enforce the Fourteenth Amendment, entitled "An Act to 
protect all citizens in their civil and legal rights." This law made 
it criminal for any person to deny to any citizen on account of race 
or color the full and equal enjoyment of inns, public conveyances, 
theaters and other places of amusement. A number of colored per- 
sons having been refused accommodations in a hotel, the manage- 
ment was prosecuted under the Act, and the case being appealed 
to the Supreme Court, that tribunal decided that the Fourteenth 
Amendment gave Congress the power to make laws enforcing the 
amendment, but not the power to regulate domestic internal affairs 
within the States. The amendment prohibited a State government 
from discriminating between whites and blacks in its general legisla- 
tion, but this by no means prevented a hotel-keeper or theater mana- 
ger from making such a discrimination, nor did the amendment give 
to Congress any power to regulate theaters or hotels. This power 
still remained in the control of the States. If a State had enacted 
a law excluding Negroes from hotels, such a law might possibly prove 



CONSTITUTIONAL PROTECTIONS 489 

invalid under the Fourteenth Amendment, and Congress had full 
power to pass laws which would prevent the State governments 
from making such discriminations. Congress had power "to adopt 
appropriate legislation for correcting the effects of such prohibited 
State laws and State Acts, and thus to render them effectually null, 
void and innocuous." This is the legislative power conferred upon 
Congress, and this is the whole of it. It does not invest Congress &- 
with power to legislate upon subjects which are within the domain w 
of State legislation; but to provide modes of relief against State 
legislation, or State action, of the kind referred to. "An apt illus- 
tration of this distinction may be found in some of the provisions of 
the original Constitution. Take the subject of contracts for example. 
The Constitution prohibited the States from passing any law impair- 
ing the obligation of contracts. This did not give to Congress power 
to provide laws for the general enforcement of contracts; nor power 
to invest the Courts of the United States with jurisdiction over 
contracts, so as to enable parties to sue upon them in those courts. 
It did however give the power to provide remedies by which the 
impairment of contracts by State legislation might be counteracted 
and corrected; and this power was exercised." Applying this same 
principle to other questions, the Fourteenth Amendment does not *~~ 
forbid railway companies to provide separate cars for persons of 
the colored race nor does it prevent a theatre management from ex- 
cluding persons on any ground whether of race, color or other dis- 
tinction, because a railway or a theater is not a State and it is only W 
the State government which is forbidden from committing Acts of 
discrimination. The State legislature itself may provide by law that 
the colored and white races shall be separately or equally accommo- 
dated on railway trains within the State; that has already been ap- 
proved by the Supreme Court in Plessy v. Ferguson, 163 U. S. 537; 
1896, but such a law would be unconstitutional if it provided that 
the accommodations for the colored race should be inferior or superior 
to that of other races because this would be denying equal protection. 
Nor could a State exclude white or colored persons from the theaters 
and hotels by law, even though it is legal for the managers, as private 
individuals, to do so. While these principles have been established 
chiefly in race questions, they apply as well to other affairs not 
connected with racial differences. The Fourteenth Amendment 
does not regulate business or other eoneerns between private indi- 
viduals but only between the State and the individual. 

Have Corporations the Full Rights of Citizens? —While corpora- 
tions enjoy most o\ the rights which the Constitution gives to "per- 
sons" they have nol the rights of "citizens" in the broad, general 

sense oi the Constitution. They cannot claim the right to transact 
business in any State of the Union which they choose; they cannot 
demand protection under Article 4, Section 2, which declares that 
"the citizens of each state shall be entitled to all privileges and im- 
munities oi citizens in the several States." [f they could, thev might 



490 THE NEW AMERICAN GOVERNMENT 

demand entrance to any commonwealth in the Union and the privi- 
lege of transacting business regardless of State licenses or permits. 
In Pembina Mining Company v. Pennsylvania, 125 U. S. 181; 1888, 
the Court said: " Corporations are not citizens within the meaning 
of that clause. This was expressly held in Paul v. Virginia, 8 Wal- 
lace, 168; 1868. In that case it appeared that a statute of Virginia, 
passed in February, 1866, declared that no insurance company not 
incorporated under the laws of the State should carry on business 
within her limits without previously obtaining a license for that pur- 
pose. ... A subsequent statute of Virginia made it a penal of- 
fence for a person to act in the State as an agent of a foreign insur- 
ance company without such license. One Samuel Paul, having acted 
in the State as an agent for a New York insurance company with- 
out a license, was indicted and convicted in a Circuit Court of Vir- 
ginia, and sentenced to pay a fine of $50. . . . Here it was con- 
tended, as in the present case, that the statute of Virginia was in- 
valid by reason of its discriminating provisions between her cor- 
porations and corporations of other States; that in this particular 
it was in conflict with the clause of the Constitution mentioned, that 
the citizens of each State shall be entitled to all the privileges and 
immunities of citizens of the several States. But the Court answered, 
that corporations are not citizens within the meaning of the clause; 
that the term citizens, as used in the clause, applies only to natural 
persons, members of the body politic owning allegiance to the State, 
not to artificial persons created by the legislature, and possessing 
only such attributes as the legislature has prescribed; that the privi- 
leges and immunities secured to citizens of each State in the several 
States by the clause in question are those privileges and immunities 
which are common to the citizens of the latter States under their 
constitution and laws by virtue of their citizenship; that special 
privileges enjoyed by citizens in their own States are not secured in 
other States by that provision; that it was not intended that the 
laws of one State should thereby have any operation in other States; 
that they can have such operation only by the permission, express 
or implied, of those States; that special privileges which are con- 
ferred must be enjoyed at home, unless the assent of other States 
to their enjoyment therein be given; and that a grant of corporate 
existence was a grant of special privileges to the corporators, en- 
abling them to act for certain specified purposes as a single individual, 
and exempting them, unless otherwise provided, from individual 
liability, which could therefore be enjoyed in other States only by 
their assent." 

Changes in Constitutional Protection. — In all of these ways the 
Constitution has set up bulwarks against the misuse of political 
power in both nation and State. It would almost seem as if every 
contingency had been provided for and that the business man, the 
farmer, the mechanic, the producer and the consumers were amply 
protected at every point which the Constitution could reach. But 



CONSTITUTIONAL PROTECTIONS 49 1 

if we re-examine these parts of our fundamental law, it becomes 
clear that most of them were adopted at times when the business 
conditions were far different from those now prevailing. A Con- 
stitution is, after all, the expression of the political thought of a 
people under the conditions of a certain time. Change the surround- 
ings and the time and a new need for constitutional protection arises. 
So it is with the nature and the purpose of the clauses which we have 
just examined. They need to be amplified, revised and completed, 
that they may protect our liberty and rights and encourage and pro- 
mote our welfare under the new circumstances of the present. Our 
Constitution still aims to protect liberty but liberty in a new and 
broader sense which we shall examine under the Police Power. 

REFERENCES 

Ames: Proposed Amendments to the Constitution. 

Bryce: American Commonwealth, Vol. I, 1910 Edition, Chapters 32-35. — 
The Amendment and Development oj the Constitution. 
Tiedeman: The Unwritten Constitution. 
Coole y : Constitutional Limitations on the Powers of the States. 
Cor win : Doctrine of Judicial Review. 
Fisher : Evolution of the Constitution. 
Hall: Constitutional Law. 
McGeehee : Due Process of Law. 
Thayer : Cases on Constitutional Law. 
Reeder: The Validity of Rate Regulation. 



QUESTIONS 

1. You are explaining to an European how our Federal Constitution is 
arranged to prevent sudden changes in the form of government. Outline your 
explanation. 

2. Make a brief list of the main features of the Constitution arranged in two 
groups: (a) those which you consider the essential fundamental parts and (b) 
those which you think might be changed without altering the essential nature 
of the government. In which group would you place the powers of Congress? 
Would you favor any changes in these powers? 

3. Why is the present method of amendment so diilicult to operate? 

4. By which method was the income tax amendment passed? 

5. How long did the agitation in its favor last? 

6. Why was the amendment providing for the direct election of senators so 
often and so easily defeated? 

7. Tn a discussion of the Constitution it is urged that the fathers in 1787 
were gifted with such unusual ingenuity that they invented a well-nigh perfect 
instrument and that we should not attempt to improve on their work, in these 
troublous and unsettled times. What would be your view oi this opinion? 

8. In a discussion you are desirous of showing the existence of an unwritten 

Constitution in the United states. Outline your argument with examples. 

0. You wish to show that the Supreme Court has sometimes changed the 

meaning of the words of the Constitution. Example. 

10. Resolved, that the method of amendment of the National Constitution 
should be made less difficult take either side. 

1 1 . Why were the first ten amendments to the Constitution adopted? 

1 2. Ho they apply to the National Government, to the States, or to both? 

i.v The owner of a building finds that its value has been reduced by the 

erection of a large public playground next door, lie complains to the COUltS 00 



492 THE NEW AMERICAN GOVERNMENT 

the ground that the State in establishing the playground has lessened the value 
of his property and thereby deprived him of property without due process of 
law, contrary to the 5 th Amendment. What would be the answer of the courts 
and why? 

14. The first man condemned to be electrocuted in New York appealed to 
the United States Supreme Court on the ground that the punishment was cruel 
and unusual, — it being at that time new in this country, — and that it therefore 
violated the 8th Amendment which declares that "excessive bail shall not be 
required nor excessive fines imposed, nor cruel or unusual punishments in- 
flicted." Decide the case with reasons. 

15. Why are the first ten amendments sometimes called the "Bill of Rights"? 

16. How would you explain to a foreigner the chief liberties and safeguards 
contained in the Federal Bill of Rights? 

17. Why were the 13th, 14th and 15th Amendments passed? 

18. Explain the chief differences between the purposes of these amendments. 

19. Your State legislature passes a law providing that bankrupt debtors 
shall be imprisoned at hard labor. John Doe fails in business. Must he go to 
jail? Reasons. 

20. A colored man is denied the right to vote because he cannot comply 
with the State law requiring voters to pass an educational test. He claims 
that the law is unconstitutional under the 15th Amendment. Decide with 
reasons. 

21. The Doe Baking Company establishes its plant in the State of X where 
the State Constitution provides that any person or corporation may engage 
freely in the baking business upon compliance with reasonable standards of 
sanitation and purity of products. Five years later the State Constitution is 
revised and an article inserted allowing cities to regulate the baking business. 
The city in which the Doe Company has located passes an ordinance requiring 
all bakeries to secure a permit and to pay $500 therefor, before transacting 
further business. The Doe Company protests on constitutional grounds. 
Decide the case with reasons. 

22. A railway company is incorporated under the State law in 1854 with 
the charter right to charge not more than 5c per mile for passenger fares. In 
1873 the State Constitution is amended, giving the rate fixing power to the 
legislature. The latter body passes a law fixing 2c per mile as the highest pas- 
senger charge in the State. Constitutional? Reasons in full. 

23. In 19 1 5 John Doe makes a promissory note to Richard White with in- 
terest at 5%. The note is renewed and in 19 16 the State legislature passes a 
law cancelling all promissory notes made within the last year at more than 4% 
interest. Doe, under the law, refuses to pay and the case comes to the Supreme 
Court. Decide with reasons. 

24. Explain the Supreme Court's decision as to whether the Dartmouth 
College charter of incorporation made by the King of England was a contract. 
Give reasons in full. 

25. Show exactly how the enlargement of the Board of College Trustees by 
the New Hampshire Legislature was or was not a violation of the U. S. Con- 
stitution. 

26. How do the States now regain the power over corporations which they 
have lost through the Dartmouth College v. Woodward decision? 

27. Explain the constitutional difference between price or rate regulation 
and safety regulation; also the different types of business to which these forms 
of regulation apply. 

28. Which of the following enterprises might be constitutionally regulated 
in the way mentioned, and why : 

(a) State law providing that shoes must be labelled on the box 

"all leather" or "composition leather," according to the 
materials used in manufacture. 

(b) State law providing that oleomargarine colored to resemble 

butter must be marked "oleomargarine," if manufactured 
for sale within the State. 



CONSTITUTIONAL PROTECTIONS 493 

(c) State law fixing the price of shoes at $4.00 per pair. 

(d) State law requiring that all shoes shall be made only of thor- 

oughly seasoned calf skin leather. 

(e) State law providing that all barber shops must remain open 

until 12 midnight on Saturdays. 

(f) State law requiring that railway stations within the State must 

remain open until one hour after the last train has passed 
through, each day. 

(g) State law requiring that alcohol used for medicine if manufac- 

tured for sale within the State must be 90% pure, 
(h) A State law fixing the charges of storage for grain in elevators 
within the State. 
20. What is "freedom of contract" and how is it protected by the Constitu- 
tion? 

30. Congress passes a law providing that attorneys who secure or aid in the 
securing of land grants for homesteaders must not charge more than $15.00. 
Mr. Sharpe, an attorney, secures such a grant for his client and renders a bill 
for $50.00. When prosecuted under the Act he claims that the law interferes 
with his freedom of contract. Decide with reasons. 

31. Prepare a brief essay on "due process of law" showing its origin, its 
meaning in England and the special meaning which it has acquired in the 
United States. 

32. John Doe is arrested for violation of a speed ordinance requiring auto- 
mobiles to observe the fifteen-mile limit. He protests, claiming that the auto- 
mobile is his property and that he may not be deprived of his liberty or property 
nor his right to do as he pleases with it, without due process of law. Decide with 
reasons. 

33. The city councils pass an ordinance authorizing the police to seize and 
sell immediately any automobile which exceeds fifteen miles per hour in speed 
and pay the proceeds into the city treasury as a fund, without further formality 
or other procedure. Explain the constitutional status of this ordinance and the 
exact part of the Constitution which applies. 

34. The State legislature provides by law that the manufacture of shoes 
shall no longer be permitted in the State. Is the Act constitutional? Reasons. 

35. A provision is inserted in the California constitution allowing persons 
to be tried for crime, cither upon an indictment found by a grand jury or an 
information (accusation and hearing before a magistrate). Would such an 
information be valid under the Federal Constitution? Reasons. 

36. Congress passes an Act providing for a similar procedure by information 
in Federal criminal cases. Is it constitutional? Reasons. 

37. A State constitution provides that the legislature may by law dispense 
with jury trials in civil cases. Is the State constitution valid under the Federal 
Constitution? 

38. Congress passes a law providing that in all civil eases the trial shall be 
without a jury. Is the law valid? Reasons. 

30. A State legislature, pursuant to the Slate constitution, provides that a 
simple majority verdict of the jury shall be sufficient to convict in criminal 

cases. Is the law constitutional? 

40. Mr. John Swift secures a political appointment in the National Govern- 
ment. At the end of his term he is $10,000 in arrears in his accounts. The 
government attaches his bank balance and pays it into the treasury. He pro- 
tests, claiming thai his property has been taken without due process o\ law as he 
was given no hearing at all at the time of the attachment. Decide with reasons 
and precedent. 

.p. \)o the WOrds"due process" as used in the 1 |th Amendment mean the 

same procedure in all tin- States and at all times? 

I '. A State Commission passes two resolutions, one providing that the old 

rolling stock o( a poorly managed city trolley company shall he taken from it 

bv public officials in order to force it to buy new cars: the other resolution pro- 
vides that street car fares must not exceed LC each and that free transfer tl< 



494 THE NE W AMERICAN GOVERNMENT 

must be given to all intersecting lines. Explain in detail the constitutional 
status of each of these resolutions. 

43. The legislature provides that reasonable room for sitting or standing 
without excessive crowding, must be provided in every street car and that 
passengers must not be allowed to ride on the front or rear platform. Is this 
constitutional? 

44. In another law the State requires that all passengers must be provided 
with seats and that street cars must be run with sufficient frequency to accom- 
modate all who desire passage; further that only steel cars may be used, that 
flag men must be stationed at every intersecting line and that an extra brake- 
man must be carried on every car to aid in its control. Explain fully the con- 

, stitutional status of this Act. 

45. A railway subject to State regulation claims that the rules of the State 
are so burdensome as to deprive it of its property; the State claims that it is 
able to earn a handsome return on its investment. How would the question be 
decided? 

46. In a suit under the due process clause, to prevent excessive State regula- 
tion the State authorities answer that a corporation is not a person and that the 
14th Amendment protects only persons against State action. Decide with 
reasons. 

47. Could a State forbid corporations which transact business within its 
limits to transfer their lawsuits from the State to the Federal courts, under 
penalty of having their licenses or charters forfeited? Reasons and authority. 

48. What is class legislation? Give an example. 

49. Does the Constitution expressly forbid class legislation by the United 
States, or by the States, or by both? Cite the clause in question. 

50. The mayor of Bytown acting under a city ordinance which forbids 
Italians from carrying arms proceeds to disarm all unnaturalized Italians within 
the city. One of them protests claiming that the mayor is violating the Federal 
Constitution, to which the official answers that the equal protection clause safe- 
guards only citizens, not unnaturalized foreigners. Decide with reasons. 

51. A State law provides that no person shall practice medicine without a 
license or permit from the State to be granted by the State medical board. This 
board then proceeds to admit all applicants who are American born and to 
reject all foreigners. A foreign applicant protests and shows that he is qualified 
but has been denied a permit. The board answers that the law itself is a per- 
fectly constitutional, protective measure and has been adopted in one form or 
another in all the States. Decide the controversy with reasons and precedent. 

52. A State provides that doctors, dentists and druggists must be licensed 
before practicing their profession but requires no such license for the practice 
of accountancy. A dentist protests on the ground that he is denied the equal 
protection of the laws because of the discrimination in favor of accountants. 
Decide with reasons. 

53. A State law forbids combinations in restraint of trade in all forms of 
industry except the manufacture and sale of agricultural implements. Is the Act 
constitutional? Reasons in full. 

54. A State provides that companies transacting business in more than one 
place within the State must not reduce their prices at one point in order to drive 
out or destroy their competitor, while maintaining prices at another. A defend- 
ant company prosecuted under the Act claims that the law violates the 14th 
Amendment in that it does not affect all companies engaged in the same business 
but applies only to a particular, arbitrarily chosen class; viz., those transacting 
business in two or more places, and as such is class legislation. Decide with 
reasons and precedent. 

55. John Doe and Company, Richard Roe and Company and others are 
engaged in the manufacture of gunpowder. Owing to frequent explosions and 
loss of life and property, the State government builds a special gunpowder plant 
and rents it to the Safety Powder Company giving the company an exclusive 
monopoly of powder manufacture within the State. The Doe and Roe Com- 
panies claim that this is a violation of the 14th Amendment in that it depriveo 



CONSTITUTIONAL PROTECTIONS 495 

them of the privileges and immunities of citizens of the United States. Decide 
with reasons and precedent. 

56. You are explaining to a friend which of his rights are the privileges and 
immunities of a citizen of the United States and why. Outline your explanation. 

57. Give some privileges of citizens of a State with examples. Arthur Jack- 
son, William Johnson, Henry White and George W. Snow, all colored citizens, 
are holding a meeting with the purpose of passing a resolution declaring 
their constitutional rights. They are interfered with and the meeting broken 
up by a disorderly mob of white persons. The Federal law passed in 1870 
provided that citizens of the United States should be free from intimidation or 
oppression by other persons while exercising their rights under the Federal 
Constitution and laws. Could members of the mob be punished under the 
above Act? Explain with reasons and precedent. 

58. Congress passes an Act forbidding the proprietors of hotels, public con- 
veyances and places of amusement from discriminating against citizens of the 
United States on account of their race or color. A hotel keeper refuses admission 
to a colored man on that ground. Can he be punished under the Federal law? 
Reasons and precedent. 

59. May a railway company constitutionally provide separate accommoda- 
tions for whites and colored within a State? 

60. May it constitutionally provide inferior accommodations for either 
race? 

61. May a State constitutionally require railways within its boundaries to 
provide separate accommodations for the two races? 

62. May it require such railways to provide superior accommodations for 
the colored race? 

63. Can a corporation claim that having been chartered in Delaware it is 
entitled to transact business in Illinois under Article 4, Section 2 "the citizens 
of each State shall be entitled to all privileges and immunities of citizens in the 
several States "? Reasons and authority. 



CHAPTER XXIV 

CONSTITUTIONAL PROTECTIONS— Continued 
THE POLICE POWER 

What is Liberty? — In all our discussion of the protection of the 
citizen's rights we have come upon the constantly recurring word 
''liberty." The old idea of liberty was freedom from government 
interference. For this reason the State and National Constitutions 
were drafted with an idea of preventing government action. Sur- 
prising as it seems, it is yet true that our constitutions devote more 
space to what the Federal and State governments may not do than 
to what they may. But as we ask more and more of the govern- 
ment and as its usefulness grows, we cease to think of liberty as 
freedom from government action, and realize that such action must 
be increased. This brings on the conflict between an "individualis- 
tic" and a "social" policy of government, — the conflict that is now 
waging with full vigor in American politics. 

The Individualistic View. — We have always believed that each 
individual was entirely responsible for his own success or welfare. 
A man was a criminal because of his own vicious propensities which 
he would not control; he was a pauper because he was shiftless and 
dissipated; he was a successful man because of his superior self- 
denial, his saving and his general ability; he was educated because 
he used the schooling that others neglected; or he was ignorant 
because he refused to do so. This belief is a bracing, stimulating 
doctrine without which we should never have conquered the oceans, 
the forests, the mines and the natural resources of our continent. 
It fits exactly the era of the pioneer, with unlimited free land and 
an abundance of natural wealth, — an era when it was "every man 
for himself." It is a belief which is still much needed among us to 
sharpen our ambition and strengthen our efforts, but it no longer 
offers a complete public policy. It does not take into account the 
new and rapidly growing force of environment in a dense and 
crowded population; it does not explain how two individuals of 
about the same ability, honesty and ambition, placed in two differ- 
ent sets of surroundings may turn out, one a failure and the other a 
success, one an honest man and the other a criminal. This weakness 
of the individualistic view has become more and more apparent 
until it is now being slowly modified by the environmental or social 
viewpoint. 

The Social View. — According to this newer standpoint some 
share of the results secured by individuals, their successes and 

496 



CONSTITUTIONAL PROTECTIONS 497 

failures, their moral or dishonest acts, is due to their surroundings. 
The " social environment" of a man, the newspaper, the school, the 
church, the office, the home and his other surroundings, bring to 
bear upon him such a constant, overwhelming and irresistible 
stream of influences that they determine what his action will be 
under most circumstances. The abnormal man or the insane may 
not respond to these influences, or he may react against them in an 
entirely unexpected way, but the normal person is guided largely by 
this social force. When the public school system teaches hygiene, 
when the magazines and newspapers discuss health problems, when 
the street-car advertisements preach breakfast-foods, and the 
boards of health of large cities issue bulletins on individual health 
and efficiency, — the average man inevitably begins to think of and 
care for his body, because his entire social environment guides him. 
If his health is so strongly influenced by his environment, how 
much more so his moral and educational training, his recreation, his 
efforts towards industrial efficiency and a comfortable standard of 
living, in short his personal welfare ! As the importance of environ- 
ment in this welfare increases, the conclusion forces itself upon us 
that we must put forth every effort to make that environment more 
favorable, and that our government authorities must co-operate 
much more effectively towards this end than they have in the past. 
In all those many ways in which the community influences us, the 
community must make its influence more useful. In brief we have 
made a start on social " team work." This new point of view, which 
sets a newer and higher standard of government work, is to be seen 
in the most unexpected and interesting ways and places; the plat- 
forms of our political parties, the programs of new societies, the 
magazine and newspaper editorials, the drama and fiction of the 
hour, — all show a gradual but impressive strengthening of the 
belief that we cannot foist upon the individual all responsibility 
for his disease or health, his success or failure, his crime or honesty, 
but that the government itself as an agent for the whole people 
must now do its utmost to open up the avenues of progress. The 
government must help. This is the " social " view. 

The New Liberty. — Seen from this angle, "liberty" takes on a 
new and greater meaning. Freedom from disease, from the handi- 
cap of inefficiency and illiteracy, from overcrowded and indecent 
dwellings, and uneleanliness, are incalculably more important to us 
than the old legal freedom of contract which once occupied the 
center of the stage. In order to eontrasl the older, more formal 
ideal with this new substantial liberty let us place the two side by 
side in parallel columns. 



493 



THE NEW AMERICAN GOVERNMENT 



The Older Constitutional Rights 

i. Right to the equal protection of 
the laws. 



2. The right of persons accused of 
crime to be safeguarded in criminal 
trial procedure. 



3. Freedom of speech, press and 
religion. 



4. No person shall be deprived of 
life without due process of law. 



5. Freedom from compulsory quar- 
tering of soldiers in time of peace; 
freedom from searches and seizures in 
homes and dwellings. 

6. No person shall be deprived of 
liberty or property without due proc- 
ess of law. 



7. Right to bear arms. 



New Economic and Social Rights 

1. Equal opportunities for all in 
the Open Market: 

(a) The equal use of public facilities 
such as railways, canals, terminals, 
warehouses, wharves, etc. 

(b) Freedom from unfair and cor- 
rupt methods of business competi- 
tion, — fraud, misrepresentation, com- 
binations to destroy a competitor, 
exclusive contracts to stifle competi- 
tion, etc. 

2. Right to real protection against 
criminals. Cheaper and quicker 
justice. 

(a) A simplified, less technical 
procedure in both civil and criminal 
suits. 

(b) A more complete, efficient and 
thorough police system in both city 
and country districts. 

(c) A more careful sifting of the 
chance offender from the habitual 
criminal. 

3. The freedom of the consumer 
from extortionate and oppressive 
charges in all articles of common use, 
meats, foods, drugs, beverages, shoes, 
clothing, coal, tobacco, sugar, oil, 
express and transportation charges. 

4. No person shall be deprived of 
the opportunities for improvement, 
education and recreation, even with 
due process of law. 

5. Freedom from overcrowded, un- 
sanitary houses, factories and stores; 
right to tenement and factory in- 
spection and regulation. 

6. Right to full participation in 
economic progress and a salary or 
wage payment that will support a 
reasonable standard of living. 

7. Right to aesthetic and other 
higher enjoyments of civilization. 



We must see clearly that the old legal freedom was a means to an 
end. When men were fighting a tyrant king or a selfish mother 
country they wanted liberty "to pursue happiness" or "freedom of 
speech" both of which were denied them. When their business is 
assailed by a combination, or their own and their children's chances 
of advancement are blocked by one or another cause, they demand 
greater "freedom of business opportunity." The obstacles to 
progress are different, the meaning of "liberty" changes. Various 
publicists view this new meaning in different lights. One of the 
best statements is by Walter E. Weyl in his New Democracy — 



CONSTITUTIONAL PROTECTIONS 499 

a We are emphasizing the overlordship of the public over property 
and rights formerly held to be private. A new insistence is laid 
upon human life, upon human happiness. What is attainable by 
the majority — life, health, leisure, a share in our natural resources, 
a dignified existence in society — is contended for by the majority 
against the opposition of men who hold exorbitant claims upon the 
continent. The inner soul of our new democracy is not the un- 
alienable rights, negatively and individualistically interpreted, but 
those same rights, life, liberty and the pursuit of happiness, ex- 
tended and given a social interpretation." 

The Police Power. — These new economic and social rights 
are threatened less by the government than by organized private 
" groups" and "interests" which, in a strong desire for profit, are 
willing to ignore the public welfare. Such conditions must needs be 
regulated by the public authority. Our economic rights accord- 
ingly call for fewer safeguards against the government and more 
against private abuses. How can we adapt the old legal liberty of 
the 1 8th century to the new economic and social freedom of the 
20th? How can we harmonize an intentionally inactive govern- 
ment system with the new demands for greater activity? This 
problem is being worked out by the " Police Power" of the National 
and State governments, — that is, the authority to protect the 
health, comfort and safety of the people, and to provide for their 
welfare. 

Our modern idea of the Police Power starts from the Supreme 
Court decision in Dartmouth College v. Woodward, 4 Wheaton, 518; 
1819, which has already been considered. ,The ruling in that case 
took away from the State government such a vast share of the 
regulating power over the corporations which it had chartered, that 
it seemed as if, after a company had once secured a charter of in- 
corporation, it would be forever exempt from further State action. 
If this were so, the corporations of the land must soon become 
utterly irresponsible and uncontrollable. That is, something which 
the State itself had created would henceforth be completely in- 
dependent of the very State which created it. Furthermore, since a 
corporation charter is a perpetual grant, the irresponsible bodies 
thus formed would live forever, secure from all control. Such a 
condition would be dangerous in the extreme, both to the people and 
to the State government. Immediately the latter began to insert 
in new charters a clause providing that the State might change the 

charters in certain important respects whenever it saw tit. It even 

went further, enacting general corporation laws which declared 
that all future companies must submit to the ordinary protective 
Police Power of the State. Hut this was not enough. There were 
already in existence many thousands o\ companies chartered before 

these changes in the State law had taken place. Under the Dart- 
mouth decision, they were free from State control. How should the 
State win back its authority over these? No legislative act could 



500 THE NEW AMERICAN GOVERNMENT 

do this, nor could even a law of the Federal Congress, for the 
Constitution itself protected these charters, as contracts. 

The answer was given by the courts in their doctrine of the 
Police Power. In a series of remarkable decisions they declared 
that the authority of a State to protect the lives, health, and 
safety of its people was such an essential, inherent, vital power as 
to be of the very core and substance of State government and that 
the ''obligation of contracts" clause of the Federal Constitution was 
never intended to interfere with this protective authority of the 
commonwealth. The Police Power could prevent even a chartered 
corporation from doing anything which was dangerous to the 
people and so long as the State used this power within reasonable 
bounds, and for the purposes above mentioned, no corporation 
could claim that its charter was a contract exempting it from all 
State regulation, especially on such necessary and fundamental 
points in which the whole community had an immediate public 
interest. Nearly all the legislative measures now in the forefront of 
public discussion are exercises of the police power. The creation of 
boards of health with authority to prevent the spread of contagious 
diseases, the establishment of compulsory continuation schools, the 
prohibition of railway rebates or discriminations, the encourage- 
ment of agriculture, and the requirement of fire escapes and proper 
standards of safety in building construction are all examples from 
widely different fields of the use of this authority. 

New Problems Under the Police Power. — As the power has 
steadily expanded, it has come into further conflict with the liberty 
and property clauses of the Fifth and Fourteenth Amendments and 
with the ruling of the Supreme Court in the Dartmouth College 
decision. This conflict has grown more and more serious until it 
has become clear that we must either change the wording of those 
amendments and allow the State and National Governments to 
regulate and alter property rights and personal liberty and con- 
tracts — this would require an amendment to the Constitution, or 
we must let the words stand, but have a new series of court decisions 
changing the meaning of "liberty" and " property" so as to allow 
of their regulation by the government. We have adopted the second 
way out of the dilemma. Let us consider a number of these judicial 
rulings and see what has been their bearing upon the public regula- 
tion of business. They are focussed mainly on the following points : 

i. Does the Police Power apply to all persons and corporation 
or may it be evaded by any? 

2. Can a corporation escape regulation by a clause to that effect, 
in its charter? 

3. How far can the new Police Power interfere with "liberty' 
and "property" as guaranteed by the Constitution? 

1. The Power Controls All Corporations and Persons. — Nobody 
except a foreign diplomat or consul can disobey the protective regu- 
lations of the Police Power. The Supreme Court has even declared 



CONSTITUTIONAL PROTECTIONS 501 

that a State government may not constitutionally bargain away 
this authority nor may it agree with any persons or corporations to 
exempt them from such necessary regulation, since that would be 
a denial to others of the equal protection of the law. In Stone v. 
Mississippi, 101 U. S. 814; 1879, the State of Mississippi had granted 
a charter to an association to conduct a lottery within the State. 
Afterwards the State amended its constitution and inserted an arti- 
cle prohibiting all lotteries. The association appealed to the Federal 
Supreme Court claiming that this was a clear violation of its contract 
as expressed in its charter, and that under the decision in Dartmouth 
College v. Woodward already described, the State could not con- 
stitutionally repeal or change the charter of a company without its 
consent, but was legally bound to allow the company to continue 
its lottery business regardless of future State legislation. The Su- 
preme Court said: "The question is therefore directly presented, 
whether, in view of these facts, the legislature of a State can, by the 
charter of a lottery company, defeat the will of the people, authorita- 
tively expressed, in relation to the further continuance of such busi- 
ness in their midst. We think it cannot. No legislature can bargain 
away the public health or the public morals. The people themselves 
cannot do it, much less their servants. The supervision of both 
these subjects of governmental power is continuing in its nature, 
and they are to be dealt with as the special exigencies of the moment 
may require. Government is organized with a view to their preser- 
vation, and cannot divest itself of the power to provide for them. 
For this purpose the largest legislative discretion is allowed, and 
the discretion cannot be parted with any more than the power it- 
self." Again, referring to lotteries: "They disturb the checks and 
balances of a well-ordered community. Society built on such a 
foundation would almost of necessity bring forth a population of 
speculators and gamblers, living on the expectation of what, c by 
the casting of lots, or by lot, chance, or otherwise, 5 might be ' awarded' 
to (hem from the accumulation of others. Certainly the right to 
suppress them is governmental, to be exercised at all times by those 
in power, at their discretion. Anyone, therefore, who accepts a 
lottery charter docs so with the implied understanding that the 
people, in their sovereign capacity and through their properly con- 
stituted agencies, may resume it at any time when the public good 
shall require, whether it be paid for or not. All that one can get 
by such a charter is suspension o{ certain governmental rights in 
his favor, subject to withdrawal at will. 1 [e has in legal effect nothing 
more than a license to enjoy the privilege on the terms named for 
the specified time, unless it be sooner abrogated by the sovereign 
power o\ the State. It is a permit, v:ooy\ as against existing laws. 
but subject to future legislative and constitutional control or with- 
drawal:'' 

2. Can Any Business be Exempted from the Police Power? 
The Stone Lottery decision shows that the Slate may regulate 



502 THE NEW AMERICAN GOVERNMENT 

teries or prohibit them in spite of the company's charter. This 
important principle was even more broadly expressed by the de- 
cision in the Boston Beer Company's case. Here the State legisla- 
ture had granted in 1828 a charter to the Company, for the "pur- 
pose of manufacturing malt liquors in all their varieties." The 
right to manufacture admittedly included the right to sell the liquors 
so manufactured. Subsequently after a local option law had been 
passed, the sale of beer by the company was declared illegal, and 
certain of its liquors seized for violation of the law. The question 
then arose, did not the charter of the company entitle it to manu- 
facture and sell its product in spite of the local prohibition law after- 
wards enacted? The Supreme Court in Beer Company v. Massachu- 
setts, 97 U. S. 25; 1877, declared that the charter could give the 
Company no such exemption from subsequent police laws of the 
State. "The plaintiff in error boldly takes the ground that, being a 
corporation, it has a right, by contract, to manufacture and sell 
beer forever, notwithstanding and in spite of any exigencies which 
may occur in the morals or the health of the community requiring 
such manufacture to cease. We do not so understand the rights 
of the plaintiff. The legislature had no power to confer any such 
rights. 

"Whatever differences of opinion may exist as to the extent and 
boundaries of the police power, and however difficult it may be to 
render a satisfactory definition of it, there seems to be no doubt 
that it does extend to the protection of the lives, health, and property 
of the citizens, and to the preservation of good order and the public 
morals. The legislature cannot, by any contract, divest itself of 
the power to provide for these objects. They belong emphatically 
to that class of objects which demand the application of the maxim, 
salus populi suprema lex; and they are to be attained and provided 
for by such appropriate means as the legislative discretion may 
devise. That discretion can no more be bargained away than the 
power itself." 

The Police Power Over Nuisances. — Is a charter to conduct a 
legitimate and moral business an inviolable agreement if the business 
occasions discomfort or annoyance to the people of the surrounding 
district? Or may the enterprise be regulated despite its charter? 
In the case of the Fertilizer Company v. Hyde Park, 97 U. S. 659; 
1878, the legislature of Illinois had chartered a company with the 
right of manufacturing fertilizers within the State, no limits being 
set to the location of the company's plant. The factory having been 
situated in a suburb of Chicago, and the population having grown 
up around the plant, some complaint was made to the local sanitary 
authorities that the fertilizer factory caused obnoxious odors and 
constituted a nuisance. The authorities ordered that the nuisance 
be abated or removed, whereupon the company appealed to the 
courts. The case ultimately reaching the United States Supreme 
Court, a decision was rendered upholding the authority of the sani* 



CONSTITUTIONAL PROTECTIONS 503 

tary officials to order the abatement of the nuisance, despite the char- 
ter. The court declared that the original charter of the fertilizer 
company undoubtedly was an agreement between the company 
and the State, under the Dartmouth College ruling, but that this 
agreement did not and could not exempt the company from the 
police power of the State to protect its people from unhealthful or 
obnoxious nuisances. If the company's business necessarily caused 
such noisome odors it became its duty to prevent these odors from 
annoying or injuring the surrounding population. Even the fact 
that the company had located its plant in its present situation before 
the surrounding residences were built, could not exempt it from the 
police power as represented by the sanitary authorities. This case 
is especially interesting because it shows that even where the charter 
is construed as a contract, the courts uphold, whenever possible, 
the protective, regulating power of the State. 

Protection of Public Health. — In making provisions for public 
health, our legislatures have been allowed the fullest freedom, the 
courts having so interpreted the words " liberty" and "property" 
that they do not form an obstacle to any reasonable health regulation 
as long as the rule falls equally upon all, without discrimination. 

One of the earliest laws in this field was passed on in the case of 
the Commonwealth v. Hamilton Manufacturing Company, 210 
Mass. 383; 1876. The Massachusetts legislature had passed an 
Act in 1874 limiting the hours of women in factories to ten daily and 
sixty weekly. The Hamilton Manufacturing Company of Lowell, 
having employed a woman in its Lowell Cotton Mills sixty-four 
hours weekly, the company was prosecuted under the Act and 
demurred on the ground that the employe in question was twenty- 
one years of age, and therefore entitled to all the rights and freedom 
of contract of any adult in making an agreement with her employer 
covering the hours of labor. The company claimed further that the 
State law in so far as it applied to adult women was a violation of 
the property and liberty of the individual and contrary to the 
Fourteenth Amendment. The Massachusetts Supreme Court over- 
ruled the demurrer and declared the State Act constitutional as a 
means of preserving the health of the community; it held that the 
purpose of the Act was not to interfere with the freedom of the 
individual to work as many hours as she chose, but rather to pre- 
vent, for reasons of health, excessive and continuous labor by 
women in factories, and that this was a reasonable and natural 
precaution which was well within the powers of the State. 

One of the striking ways in which legislatures have limited the 
freedom, liberty and property of the individual for the protection 
of health and safety is the regulation of the medical, dental, legal 
and other professions. Vet those regulations have been uniformly 
upheld, the courts declaring that they are not a violation oi tlu 
intent of the liberty and property clause oi the Fourteenth Amend 
mcnt. In Dent v. West Virginia, 1 jo U. S. 114; 1SS0, the question 



504 THE NEW AMERICAN GOVERNMENT 

was presented, can a State prohibit persons from practicing med- 
icine unless they have received a certificate or license from a State 
Board. The effect of such a law, it is clear, is to bar out not only 
those who may wish to practice in the future, without a certificate, 
but even those who have been practicing in the past, but whose 
qualifications do not satisfy the requirements of the Board. A law 
of West Virginia passed in 1882 required the practitioners of med- 
icine within the State to obtain a certain certificate from the State 
Board of Health. This certificate was only granted upon condi- 
tions fixed by the law, among which was that the practitioner must 
have graduated from a reputable medical college, or must have 
practiced medicine for ten years before the passage of the Act, or 
must satisfy other requirements. Dent having practiced medicine 
six years before the passage of the law, and having presented to the 
State Board the diploma of a medical college which was rejected by 
the Board on the ground that it was not "reputable," and having 
thereupon continued to practice despite the Act, was prosecuted and 
convicted. He claimed that the law was unconstitutional in that it 
interfered with his vested right in the practice of his profession, 
thereby violating his liberty, contrary to the Fourteenth Amend- 
ment; also that it destroyed his property in rendering valueless to 
him the text books and instruments which he had purchased and 
used in the practice of his profession. The case going to the U. S. 
Supreme Court, Justice Field rendered the decision as follows: — 

"The power of the State to provide for the general welfare of its 
people authorizes it to prescribe all such regulations as, in its judg- 
ment, will secure or tend to secure them against the consequences of 
ignorance and incapacity as well as of deception and fraud. As one 
means to this end it has been the practice of different States, from 
'time immemorial, to exact in many pursuits a certain degree of skill 
and learning upon which the community may confidently rely, their 
possession being generally ascertained upon an examination of 
parties by competent persons, or inferred from a certificate to them 
in the form of a diploma or license from an institution established 
for instruction on the subjects, scientific and otherwise, with which 
such pursuits have to deal. The nature and extent of the qualifica- 
tions required must depend primarily upon the judgment of the 
State as to their necessity. If they are appropriate to the calling or 
profession, and attainable by reasonable study or application, no 
objection to their validity can be raised because of their stringency 
or difficulty. It is only when they have no relation to such calling or 
profession, or are unattainable by such reasonable study and 
application, that they can operate to deprive one of his right to 
pursue a lawful vocation. 

"Few professions require more careful preparation by one who 
seeks to enter than that of medicine. It has to deal with all those 
subtle and mysterious influences upon which health and life depend, 
and requires not only a knowledge of the properties of vegetable 



CONSTITUTIONAL PROTECTIONS 505 

and mineral substances, but of the human body in all its compli- 
cated parts, and their relation to each other, as well as their in- 
fluence upon the mind. The physician must be able to detect 
readily the presence of disease, and prescribe appropriate remedies 
for its removal. Every one may have occasion to consult him, but 
comparatively few can judge of the qualifications of learning and 
skill which he possesses. Reliance must be placed upon the assur- 
ance given by his license, issued by an authority competent to 
judge in that respect, that he possesses the requisite qualifications. 
Due consideration, therefore, for the protection of society may well 
induce the State to exclude from practice those who have not such a 
license, or who are found upon examination not to be fully qualified. 
The same reasons which control in imposing conditions, upon 
compliance with which the physician is allowed to practice in the 
first instance, may call for further conditions as new modes of 
treating disease are discovered, or a more thorough acquaintance is 
obtained of the remedial properties of vegetable and mineral sub- 
stances, or a more accurate knowledge is acquired of the human 
system and of the agencies by which it is affected. It would not be 
deemed a matter for serious discussion that a knowledge of the new 
acquisitions of the profession, as it from time to time advances in its 
attainments for the relief of the sick and suffering, should be re- 
quired for continuance in its practice, but for the earnestness with 
which the plaintiff in error insists that, by being compelled to obtain 
the certificate required, and prevented from continuing in his 
practice without it, he is deprived of his right and estate in his 
profession without due process of law. We perceive nothing in the 
statute which indicates an intention of the legislature to deprive one 
of any of his rights. No one has a right to practice medicine with- 
out having the necessary qualifications of learning and skill; and the 
statute only requires that whoever assumes, by offering to the 
community his services as a physician, that he possesses such 
learning and skill, shall present evidence of it by a certificate or 
license from a body designated by the State as competent to judge 
of his qualifications." Accordingly the Court held the law to be 
constitutional and declared that the plaintiff's right to practice his 
profession must be subject to the Police 4 Power in its protection of 
the public health. The proper exercise of this authority for such 
protection was not a violation of the liberty and property clause of 
the Fourteenth Amendment. 

State Regulation Must be Reasonable. — In making rules for 
the various occupations which it regulates, the State must not tix 
arbitrary nor unreasonable requirements, -its regulations must 
conform to existing principles and facts and may not without 
reason bar out oi the occupation large classes of well-qualified per- 
sons. In Smith v. Texas, 233 (J. S. 630, 1014. the Supreme Court 
Considered a law oi Texas forbidding any person from acting as 
conductor on a railroad train within the State without having pre- 



506 THE NEW AMERICAN GOVERNMENT 

viously served for two years as a brakeman or conductor on a 
freight train. The purpose of the Act, although somewhat obscure, 
was probably to insure a more thorough training of railway pas- 
senger conductors. Smith was a man 47 years of age who had been 
21 years in the railway business. He had served for 12 years as 
engineer on freight and passenger trains. In 19 10 he acted as 
conductor of a train without previously having been a brakeman. 
He was evidently a thoroughly competent man for the position and 
conducted his train in safety; but, having failed to serve as a freight 
brakeman before acting as conductor, he had violated the State 
statute and was prosecuted and fined. On appeal by Smith to the 
Supreme Court the State argued that it was the practice for brake- 
men on freight trains to be promoted to the position of freight 
conductors and then to the position of conductors on passenger 
trains; the law, the State contended, was in substance an enactment 
of the prevailing usage on the railway. But the Court pointed out 
that the rule fixed by the State law excluded all persons from the 
position of conductor except freight brakemen or freight conductors, 
regardless of their competence, training or ability. It showed 
further that an engineer was conspicuously well fitted for the work 
of a conductor and, in fact, shared the responsibility of a train with 
the conductor and, under the rules of all railways the freight 
engineer acted as conductor in the event of the regular conductor 
being disabled en route. By thus limiting unduly the class of per- 
sons who could contract to serve as conductors the law denied to 
Smith and to many other well-qualified persons the freedom of 
contract which is secured by the liberty and property clause of the 
Fourteenth Amendment, and was therefore unconstitutional. 
"A statute which permits the brakeman to act, — because he is 
presumptively competent, — and prohibits the employment of 
engineers and all others who can affirmatively prove that they are 
likewise competent, is not confined to securing the public safety, but 
denies to many the liberty of contract granted to brakemen/ ' 

A long series of other important laws have been upheld by the 
courts on grounds similar to those which we have considered, 
viz., — the protection of health — and have been declared entirely 
harmonious with the spirit and intent of the Fifth and Fourteenth 
Amendments. Among these are Acts forbidding harmful adultera- 
tions of food; and prohibiting the sale of harmful drugs. The right 
to slaughter cattle may be given exclusively to certain individuals 
or corporations with a view to protecting the public health. The 
hours of labor in dangerous industries may be regulated. The 
working hours of women and children may be restricted. The 
importation of diseased persons or of property which may spread 
disease, either from abroad or from one State to another, may also 
be forbidden. 

All of these limit the liberty or the property of the regulated per- 
sons in the severest way, yet they are not considered violations of 



CONSTITUTIONAL PROTECTIONS 507 

the liberty or property rights under the Constitution, because they 
are necessary for the public health. The judiciary here has taken a 
progressive stand. But in some other points the courts have looked 
with a more jealous eye upon the Police Power and have declared 
that such regulations are constitutional only when grave imminent 
danger to health exists. For example, the Federal Supreme Court 
declared invalid a New York law which limited the working hours 
of men in bakeries to ten per day, the Court holding that baking was 
not an industry dangerous to the health of the workers, and that 
the Police Power could not limit the hours of adult men in ordinary 
safe industries, where no serious danger to health existed. 1 

Morals. — In regulating morals also the greatest freedom has been 
allowed to governmental authorities by the court decisions in- 
terpreting the amendments. This has been true especially of laws 
to suppress or limit the sale of intoxicating liquors, gambling 
and vice. We have already seen that State laws against lotteries 
have been upheld, even though such laws destroy property in the 
lottery business. But the amount of property invested in lotteries 
is but trifling as compared with the hundreds of millions of dollars 
invested in the brewing and distilling industries. When the State 
governments began to pass prohibition laws forbidding the man- 
ufacture or sale of intoxicating liquors, the question at once arose — 
is this not a destruction of property within the meaning of the 
Fourteenth Amendment, and if so can the State law be upheld in 
face of the provision that no State shall deprive any person of 
property without due process? This question was decided in the 
case of Mugler v. Kansas, 123 U. S. 623; 1887. In 1881 Kansas had 
passed a prohibition law which forbade the manufacture or sale, 
except for medicinal purposes, of all intoxicating liquors. Mugler 
being convicted under the State law of selling beer, appealed to the 
national Supreme Court, claiming that the State law violated the 
liberty and property clause of the Fourteenth Amendment. The 
Court however upheld the State law, and ruled that although 
"the buildings and machinery constituting these breweries are of 
little value if not used for the purpose of manufacturing beer; 
that is to say that if the statutes are enforced against the defend- 
ants, the value of their property will be very materially diminished " 
yet "there is no justification for holding that the State, under the 
guise merely of police regulations, is here aiming to deprive the 
citizen of his constitutional rights; for we cannot shut out oi view 
the fact, within the knowledge of all, that the public health, the 
public morals, and the public safety may be endangered by the 
general use of intoxicating drinks; nor the fact, established by 
statistics accessible to every one, that the idleness, disorder, pauper- 
ism, and crime existing in the country are, in some degree at least. 
traceable to this evil, If, therefore, a State deems the absolute 
prohibition of the manufacture ami sale, within her limits, of in- 
1 Lochnert). Now York, 198 r. s. \$\ [905, 



508 THE NEW AMERICAN GOVERNMENT 

toxicating liquors for other than medical, scientific, and manu- 
facturing purposes, to be necessary to the peace and security of 
society, the courts cannot, without usurping legislative functions, 
override the will of the people as thus expressed by their chosen 
representatives." 

The same holds with regard to other regulations of public morals. 
The Federal Government has enacted statutes prohibiting the cir- 
culation in the mails or in interstate commerce of obscene literature, 
or of persons, or articles intended for an immoral purpose. In U. S. 
v. Popper, 98 Federal, 423; 1899, such legislation was approved by 
the Circuit Court. The defendant, who was prosecuted for cir- 
culating such articles in violation of the statute, claimed that his 
constitutional liberty under the Fifth Amendment was thereby 
violated. The court however held that no person has a constitu- 
tional liberty, nor a property right to do any immoral thing, and 
that when forbidden by law, he may not claim constitutional pro- 
tection for such acts or property. A similar decision, upholding 
the Federal Statute against interstate transport of lottery tickets, 
was delivered in Champion v. Ames, 188 U. S. 321; 1903. This 
case we have already considered in Chapter IX. 

Congress thereupon attempted a still more urgently needed 
exercise of its regulative power in the White Slave Traffic Act of 
June 25, 19 10. This law, which has already been described in the 
same Chapter, was upheld by the Supreme Court in a notable 
decision, Hoke v. U. S., 227 U. S. 308; 1913. 

This sound ruling has established on a firm footing the Federal 
control and protection over all forms and aspects of interstate 
business. 

Safety. — In legislation for public safety we have the most sweep- 
ing recognition of the Police Power, even when in opposition to 
property and personal rights. Employes and the public may be 
protected in factories, stores and shops; hours of labor in dangerous 
businesses may be limited by law; safety appliances of various 
kinds may be required. In short, the right of the individual to do 
what he will with his own is subjected to the most rigid scrutiny 
and regulation for safety's sake. All these new principles in our 
constitutional law have been wrought by industrial changes, which 
have created new dangers to life and limb and have made it es- 
sential that we establish and maintain a more extended legal pro- 
tection of all classes, even at the cost of the older constitutional 
rights. One of the statesman-like decisions which have ushered 
in this new viewpoint is that in Holden v. Hardy, 168 U. S. 366; 
1898. Here the legislature of Utah had passed an Act in 1896 
providing that "the period of employment of working men in all 
underground mines or workings, shall be eight hours per day, 
except in cases of emergency," also applying the same limit of hours 
to smelters. This Act differs from the others that we have con- 
sidered in that it is not intended as a protection to women and 



CONSTITUTIONAL PROTECTIONS 509 

children, who are regarded for physical reasons, as subject to special 
protection by the State, but applies rather to adult males working 
in the two dangerous industries of mining and smelting. The ques- 
tion presented was whether a State can limit the contract-making 
power of adult men to work as long as they please daily, in any busi- 
ness which they choose to enter. Holden had employed a mine- 
worker for ten hours daily and a laborer in a smelter for twelve hours 
daily. He was prosecuted and convicted under the Utah Act but 
appealed to the Supreme Court on the ground that the law was un- 
constitutional because it deprived him and all employers and em- 
ployes of the right to make contracts in a lawful way and for lawful 
purposes. He claimed also that it was class legislation and not 
equal or uniform in its provisions, and deprived him of his property 
and liberty without due process of law. 

After reviewing the two general classes of laws which have limited 
the freedom of contract and have yet been upheld as constitutional, 
Justice Brown, who delivered the opinion of the Court said: — " An 
examination of both these classes of cases under the Fourteenth 
Amendment will demonstrate that, in passing upon the validity 
of State legislation under that amendment, this court has not failed 
to recognize the fact that the law is, to a certain extent, a progres- 
sive science; that in some of the States methods of procedure, 
which at the time the Constitution was adopted were deemed 
essential to the protection and safety of the people, or to the liberty 
of the citizen, have been found to be no longer necessary; that re- 
strictions which had formerly been laid upon the conduct of in- 
dividuals, or of classes of individuals, had proved detrimental to 
their interests; while, upon the other hand, certain other classes 
of persons, particularly those engaged in dangerous or unhealthful 
employments, have been found to be in need of additional pro- 
tection." After showing how this protection has been given by a 
number of changes of a fundamental nature in the State laws, the 
Court then says of these changes: — "They are mentioned only for 
the purpose of calling attention to the probability that other 
changes of no less importance may be made in the future, and that 
while the cardinal principles of justice are immutable, the methods 
by which justice is administered are subject to constant fluctuation, 
and that the Constitution of the United States, which is necessarily 
and to a large extent inflexible and exceedingly difficult oi amend- 
ment, should not be so construed as to deprive the States oi the 
power to so amend their laws as to make them conform to the 
Wishes of the citizens as they may deem best for the public welfare 
without bringing them into conflict with the supreme law of the 
land. 

"Of course, it is impossible to forecast the character or extent 
of these changes, but in view oi the fact that from the day Magna 
Charta was signed to the present moment, amendments to the 
Structure of the law have been made with increasing frequency, 



510 THE NEW AMERICAN GOVERNMENT 

it is impossible to suppose that they will not continue, and the 
law be forced to adapt itself to new conditions of society, and, 
particularly, to the new relations between employers and employes, 
as they arise. ..." Examining the freedom of contract further 
the Court says: — "This right of contract, however, is itself sub- 
ject to certain limitations which the State may lawfully impose in 
the exercise of its police powers. While this power is inherent in 
all governments, it has doubtless been greatly expanded in its 
application during the past century, owing to an enormous increase 
in the number of occupations which are dangerous, or so far detri- 
mental to the health of employes as to demand special precautions 
for their well-being and protection, or the safety of adjacent prop- 
erty. While this court has held, notably in the cases of Davidson v. 
New Orleans, 96 U. S. 97; 1877, and Yick Wo v. Hopkins, 118 
U. S. 356; 1885, that the police power cannot, be put forward as an 
excuse for oppressive and unjust legislation, it may be lawfully 
resorted to for the purpose of preserving the public health, safety 
or morals, or the abatement of public nuisances, and a large dis- 
cretion is necessarily vested in the legislature to determine not only 
what the interests of the public require, but what measures are 
necessary for the protection of such interests." 

The Court then pointed out that the growth of manufacturing 
had created new conditions and peculiar dangers, which required 
protective legislation — fire escapes in hotels, theaters and factories 
— the safeguarding of machinery in factories, the protection of 
walls, elevators, ventilation shafts and destructive harmful gases 
in mining, — all these, said the Court, are new kinds of legislation 
designed to meet the new conditions arising from the development 
of our coal and iron supplies. Yet these laws have been upheld as 
constitutional and they do not violate the spirit of the Fourteenth 
Amendment by limiting property or liberty further than is neces- 
sary for the protection of the general safety. "But if it be within 
the power of the legislature to adopt such means for the protection 
of the lives of its citizens, it is difficult to see why precautions may 
not also be adopted for the protection of their health and morals. 
It is as much for the interest of the State that the public health 
should be preserved as that life should be made secure." The Act 
did not limit hours of labor in all employments, but only in certain 
ones which the legislature rightly considered dangerous; it was 
accordingly declared to be a valid and constitutional exercise of 
the police power. 

The Federal Railway Safety Acts. — The Supreme Court has re- 
peatedly upheld the attempts of Congress to provide for greater 
safety upon interstate railways, and has declared valid and con- 
stitutional the law of 1907 limiting the number of hours of persons 
employed in the operation of interstate trains to sixteen per day. 
The Court held that this was a proper exercise of the Federal power 
to regulate commerce and that the law would even apply with 



CONSTITUTIONAL PROTECTIONS 511 

binding force to employes who were engaged partly in interstate 
train operation and partly on intrastate trains. It declared that 
if Congress had the constitutional authority to protect passengers 
and property on interstate trains it was fully empowered to use all 
proper means towards this end, and its authority could not be 
interfered with nor lessened by the fact that some employes on 
interstate trains were also engaged on other matters not ordinarily 
subject to the jurisdiction of Congress. B. & O. v. Interstate Com- 
merce Commission, 221 U. S. 612; 1911. 

Fraud. — The power to prevent fraud is also widely recognized by 
the courts at the expense of both liberty and property. The adultera- 
tion of foods and drugs is being rapidly made both illegal and un- 
profitable by State and National laws, and the popular demand 
is rapidly growing that similar frauds in other articles of common 
use should be made impossible. In all of these the courts have up- 
held the legislature in its effort to protect the public welfare. 

Examples of this power have been considered in Plumley v. Mass. 
and Schollenberger v. Pa. in Chapter X. These cases clearly show 
the extent and limits of the State authority. 

The Police Power and Social Justice. — By this survey we have 
now seen how our Constitution is being gradually so interpreted 
as to allow the Police Power to protect the people against many 
harmful practices and dangerous evils, even though this protec- 
tion involves some sacrifice of liberty and property rights as guar- 
anteed by the amendments. In doing so the courts have really 
modified the meaning of the terms "liberty" and "property" and 
have often placed the general welfare above these rights of the in- 
dividual. The Police Power may regulate harmful businesses, and 
at times prohibit them, it may require even legitimate enterprises 
to observe the public convenience and comfort, it may protect the 
public health, safety and morals and in doing so it may even inter- 
fere with fundamental private rights, if necessary. We come next 
to the important problem of regulation for the purpose of improving 
the economic and social conditions of the people; this is the con- 
stitutional side of the great "social problem" which is becoming the 
storm center of American politics. Is it constitutional for govern- 
ment authorities to protect the weak against the strong even to 
the extent of interfering with liberty or property? Is the simple 
principle of "social justice" sufficient to render a law constitutional? 
Our courts have never admitted this. But they have established 
a number of exceptions which do expand the police power in this 
direction. Some of these are the laws affecting — 

Sailors, 

Laborers, 

Debtors, 

Women, 

Trade Combinations, 

An excellent description of the gradual progress oi the courts in this 



512 THE NEW AMERICAN GOVERNMENT 

field is given by Dr. Ernst Freund in his valuable work The Police 
Power. From the early days of our history the judges have up- 
held laws to protect the weaker classes in all the above mentioned 
list, on the ground that such classes were peculiarly liable to exploita- 
tion. Sailors are proverbially unable to care for themselves on land; 
they are especially subject to imposition and extortionate practices, 
a fact which has been freely recognized by both law makers and 
judges. The Federal statutes, upheld by the courts, have accord- 
ingly protected the sailor in the following ways: — 

Masters or owners of vessels in the coasting trade must pay a sea- 
man's wages within two days after termination of the agreement, 
or at the time when the seaman is discharged; in the foreign trade 
the payment must be made within 24 hours after discharge of cargo, 
or within 4 days after the discharge of the seaman. Any failure to 
do so entitles the seaman to his usual wages while waiting. The 
seaman cannot make an agreement to give up his lien or claim on 
the vessel for unpaid wages, nor can he agree to forfeit his claim for 
wages in case the vessel should in the future be lost, nor may he 
assign his claim for wages nor for salvage of another ship, nor may 
wages be paid in advance. The seaman's contract or " articles " 
must be signed by him in the presence of the shipping commissioner. 
All these regulations are frank recognitions of the fact that the sailor 
needs unusual protection — they all limit his and his employer's 
freedom of contract, yet they are sustained as a constitutional use 
of the National Government's power over commerce and maritime 
jurisdiction. 

Labor Contracts. — In laborers' contracts the courts have allowed 
to both National and State Governments an increasing authority 
to limit the freedom of contract of the individual. The hours of 
labor of women and children may be fixed for the sake of health and 
safety. Even the hours of adult men may be limited as we have seen 
in certain dangerous industries, such as mining, smelters, railways, 
etc., the thought here being that for the safety of the employe and 
of the public at large, the "liberty" of the individual to contract 
for longer hours may be denied by the legislature. The courts also 
look on labor contracts differently from an ordinary property contract, 
for although they will often in equity, force an ordinary contract- 
ing party to carry out the exact terms of his agreement by special 
writ and court orders, they will not so compel a laborer. Again, a 
workman injured through his employer's fault has a claim for damages 
against his employer; the legislature and the courts usually forbid 
him from signing away or selling this claim in advance of the injury, 
because they wish to protect him from being imposed upon; yet 
both courts and legislatures allow the sale or waiver of many other 
rights or claims. The workman is also further protected in many 
States by a law providing that he cannot be held for a labor contract 
extending over a longer period than two years, unless the agreement 
is in writing. In all these respects both the workman and the em- 



CONSTITUTIONAL PROTECTIONS 513 

ployer find that their freedom of contract, and thereby their general 
liberty, is limited for the better protection of the weaker party, yet 
the courts will not interpret this as a denial of their liberty or prop- 
erty as prohibited in the 5th and 14th Amendments. Debtors who 
are being oppressed by extortionate rates of usury are also shielded 
by special legislation from money loan "sharks," and the bankruptcy 
law of all countries provides that an honest debtor may after a court 
distribution of his available funds be discharged from his debt alto- 
gether. Here is an undoubted limitation of the property right of the 
creditors and its only excuse is to prevent the crushing of the debtor 
under the accumulated burden of his obligations, just though they 
may be. Again the State and National lawmakers have passed 
statutes to prevent oppressive combinations in trade, which might 
suppress competition and drive out of business the weaker competitor. 
Such laws are difficult to enforce but they unquestionably prevent 
the grosser forms of trade abuses and their constitutionality is now 
upheld by all the courts. Here the lawmaker aids the consumer 
but he also frankly avows his intention of preserving the weaker 
competitor and in doing so he deliberately fixes limits upon the 
freedom of competition and the use of property so that both liberty 
and property rights are restricted. 

Recent Extensions of the Power. — In all of these latter fields 
the courts have firmly established the principle that government 
may intervene to protect the weak from oppression, not on grounds 
of preserving the public health, the public safety, or the prevention 
of fraud — but purely on the basis of the social welfare. In this policy 
the weak have been protected because they were weak, and the law- 
maker, upheld by the judge, has taken strong measures to limit 
and curb the vested rights of property in order to establish " social 
justice." In the now famous decision of the U. S. Supreme Court 
in Noble Bank v. Haskell, 219 U. S. 104; 1911, Justice Holmes said 
that the police power "extends to all the great public needs. It 
may be put forth in aid of what is sanctioned by usage or held by 
the prevailing morality or strong and preponderant opinion to be 
greatly and immediately necessary to the public welfare." 

How far can the police power go in limiting the freedom of con- 
tract to protect social welfare? In Chicago, Burlington and Quincy 
v. McGuire, 219 U. S. 549; 1911, this question was presented In an 
interesting form. The railway company had established a relief 
plan, which provided for sickness and granted benefits, but had 
stipulated that an injured man's acceptance of such benefits from 
the Relief Fund should release the company from liability for injury 
under the law. In [898 the State oi Iowa provided that all railway 
corporations should be responsible for damages arising through the 
injury of their employes caused by the neglect oi the railway cor- 
porations, also that no contract oi insurance or relief made be- 
fore the injnn-, nor any acceptance oi such relief or insurance after 
the injury should excuse the company from its liability under the 



514 THE NEW AMERICAN GOVERNMENT 

law. McGuire was injured in 1900. He was a member of the relief 
plan, and as such, he had accepted $822 in relief benefits. In spite 
of this he sued the company and recovered $2,000. The company 
appealed to the Supreme Court on the ground that the Iowa statute 
violated the freedom of contract of the company and thereby con- 
flicted with the liberty and property clause of the 14th Amendment. 
Justice Hughes in delivering the opinion of the Supreme Court 
based his decision upon the following points: — Had the legislature 
power to enact a law which provided that railway companies should 
be liable for injuries arising from their negligence or that of their 
employes? Undoubtedly it had, and the power had been upheld 
in numerous previous decisions of the Court. But if the legislature 
had this power, it must necessarily also have the authority to forbid 
any contracts which would defeat the power. Clearly if employes 
of a railway company could be persuaded to sign away their right 
before any injury occurred, they could readily be required as a con- 
dition of employment in the company, or of advancement in its 
service, to make such an agreement, and thereby they would lose 
the benefits which the law was intended to give them. Clearly too, 
if employes could be coerced or persuaded into signing contracts 
to abandon their claim for damages against the company, the very 
purpose for which the law was enacted would be defeated by such 
contracts, and the injured workman would lose a large proportion 
of the benefit which the law was intended to give him. Accord- 
ingly, the State in its police power to protect the safety and welfare 
of its people, has not only the authority to establish liability for 
accidents, but to forbid contracts which would destroy this liability. 
Great stress was laid by the company in its defence, upon the 
fact that McGuire, as a member of the relief system, had accepted 
sums of money amounting to $822 although this very system pro- 
vided that in doing so he waived his claim to damages against the 
company. But this, said Justice Hughes, was nothing more than 
carrying out a contract which the law prohibited and which it had a 
right to prohibit. If the State was empowered to forbid such 
contracts, it certainly could forbid also the acceptance of money 
under this contract. Accordingly, McGuire was in no way bound 
to or by that section of the relief plan which forbade him to sue in 
case of injury, because that section was forbidden by the Iowa 
statute, and was simply a means of evading the statute. McGuire's 
right to sue still remained, and the State's authority to forbid any 
contracts which would destroy his right to recover damages, was 
not a violation of the freedom of contract of the company. Freedom 
of contract does not mean an absolute right to make any contract, 
whatsoever, regardless of the laws of the State or United States, 
nor does freedom of contract prevent the State or Congress from 
protecting the welfare and safety of the people. 

The Police Power and Prosperity. — We cannot close this con- 
sideration of the police authority without a word as to its true place 



CONSTITUTIONAL PROTECTIONS 515 

in government. The wonderful results which seem almost within 
our reach by a proper use of this important protective power have 
led some of our people to believe prosperity is only a matter of 
proper lawmaking, that if we choose the right public officials, elect 
good law makers and appoint competent judges, our business and 
social problems will be solved and prosperity and peace must reign 
within the land. This idea that the government, instead of the 
man, is at the root of all prosperity is an old thought, yet it con- 
tinually crops up in some new form. Frederick the Great, of Prussia, 
declared that he would make his subjects prosperous, whether they 
wanted to be or not. In some of the Central American Republics 
the more ignorant class of peons are persuaded that political 
liberty means freedom from work, and that the adoption of North 
American republican institutions would in itself bring an end to all 
business troubles. In Porto Rico and the Philippines the advent of 
American liberty meant to many of the natives a happy day, when 
all work should cease. So, among our own people there are num- 
bers who firmly believe that if the national and State governments 
did their part, property would be fairly divided, each individual 
having a good share, and that wealth and affluence must prevail in 
all classes. They accordingly hold that the Police Power should not 
only protect and promote all forms of business and social improve- 
ment but must relieve the individual of all responsibility for his 
own success. The logical result of this reasoning is the socialistic 
theory of the State according to which all means of production, 
land, factories, real estate, and movable property, must be taken 
over by government authorities and administered for the welfare of 
all the people. While very few Americans believe practically in this 
doctrine, some are already asking that the sphere of government 
be enlarged to cover such new public industries as mining, iron and 
steel making, warehousing, banking, insurance, and many other 
forms of industry and commerce. 

But we must remember that the Police Power of both nation and 
State is first and foremost protective. It can prevent dangers to 
health, safety and morals, it can safeguard us against the grosser 
forms of exploitation, in short it can save us from the sacrifice of all 
our natural and human resources to the interest of a few favored, 
privileged classes or individuals, but it cannot guarantee each man 
success in the "pursuit of happiness;" it cannot act as an over- 
seeing providence to guard a man against all his own mistakes. 
What the Police Power must do is to train personal efficiency, open 
the doors of opportunity, mark out certain limits of social responsi- 
bility, and within these limits provide an open road and a fa- 
vorable environment, and make this countr\- "a £ood place to 
live." That this work has begun in earnest and is being carried 
forward with success is now clear from the strong array oi statutes 
and decisions which we have considered, -all tending towards the 
stead}-, progressive expansion o\ this important power. 



516 THE NEW AMERICAN GOVERNMENT 

REFERENCES 

Freund r The Police Power. 

Hall: Constitutional Law. 

McGeehee : Due Process of Law. 

Reeder : The Validity of Rate Regulation. 

Weyl: The New Democracy. 

W. W. Willoughby: U. S. Constitutional Law. 

QUESTIONS 

i. Mention some of your most important constitutional rights. Place there 
in column form on paper. 

2. State opposite each right whether the Constitution guarantees it against 
the National Government, the States, or both, or against other persons. 

3. Outline briefly the individualistic view of personal welfare and public 
policy. Explain its advantages. 

4. Summarize the social view of this same problem and show how environ- 
ment affects personal welfare. 

5. Contrast the formal, legal view of liberty with the newer demands for 
economic and social freedom and give examples. 

Explain why so many persons who have complete constitutional liberty under 
our present conditions are dissatisfied with our constitutional and legal system. 

6. What are your impressions as to the practical importance of the new 
demands for economic freedom? 

7. Are the regulative laws which are now being passed in both State and 
nation intended to protect us from government authorities or from the en- 
croachment of private interests? Reasons. 

8. Explain the doctrine of the police power, showing its origin. 

9. Why does the police power necessarily come into conflict with the 
amendments of the Constitution? 

10. Show the various possible ways of settling this conflict and state which 
one we have adopted and why. 

1 1 . Does the power apply to all persons and corporations? Reasons. 

12. Upon payment of a large sum of money to the State treasury a Casino 
Company is given the right by a State law to conduct a Monte Carlo at a large 
seashore resort in the State. Later, in response to public sentiment the State 
legislature passes a law forbidding gambling at any point within the common- 
wealth. The Casino Company protests on the ground that its existence is 
expressly permitted by the former State law and that this right cannot be taken 
from it without violating the obligation of contract clause of the Federal Con- 
stitution. Decide with reasons and precedent. 

13. The Grandfather's Rye Distilling Company is incorporated under a 
State law permitting the business. The Company's charter authorizes it to 
manufacture and sell spirituous liquors. Later a prohibition law is passed by 
the State legislature. Can the company be prevented from conducting its 
business? Reasons and authority. 

14. The Acme Slaughterhouse Company is chartered by the State of Ne- 
braska with the expressly mentioned right of slaughtering, preparing and packing 
animals and meats for food and industrial purposes. It has many by-products 
among others, glue. A small town grows up around its plant and many of the 
citizens complain of the odors from the glue factory. Can the local board of 
health compel the company to stop the inconvenience or discomfort to the 
citizens? Reasons. 

vi$. A board of health compels all persons in a given district to be vaccinated 
against smallpox. John Doe objects on the ground that his liberty is violated 
contrary to the 14th Amendment. Decide with reasons. 

16. The State passes a law limiting the number of hours of work for women 
in factories and stores. The All-Day department store employs Mary Ryan for 
a longer period than is permitted by the law. Both the store and Mary Ryan 



CONSTITUTIONAL PROTECTIONS 517 

testify that their liberty and property are taken from them by the Act, the ste; e 
because it will have to pay other persons for the rest of the clay and Mary Ryan 
because she cannot earn as much commission as she otherwise would. Decide 
the case with reasons and precedent. 

•^7. A State requires druggists to take out a license after passing an examina- 
tion showing their proficiency. The Prescription Drug Store Company is 
fined for violation of the Act and appeals to the Supreme Court on the ground 
that its liberty and property have been taken from it by the Act. Decide with 
reasons and precedent. 

18. An additional Act is passed requiring druggists before receiving a license 
to have served at least two years as salesmen in some kind of a retail store. 
Constitutional? Reasons and authority. 

19. The State legislature passes a law restricting the hours of work for both 
men and women to eight per day in department stores. Constitutional? Rea- 
sons and precedent. 

20. The D. T. Distilling Company owns a large distillery in a State where 
intoxicating liquors may be sold on payment of a license fee. The State legisla- 
ture passes a prohibition act reciting in the Act that the purpose is to reduce 
crime and immorality due to intoxication. The D. T. Company objects on the 
ground that its property is worthless except for purpose of distilling and that it 
will be an almost complete loss under the new prohibition law. Decide the case 
with reasons. 

21. Congress passes an Act prohibiting the passage of obscene literature in 
interstate commerce or through the mails, on the ground of immorality. A large 
publishing company prints objectionable postcards, sends a shipment of the 
cards to a dealer in another State. The company is prosecuted under the 
Federal law and protests that its cards are its own property which, under the 
5th Amendment it can use as it pleases. Outline the company's defence more 
fully and the decision of the court with reasons and authority. 

22. Congress forbids the sending of lottery tickets in interstate commerce or 
through the mails. The Success Lottery Company ships its tickets from Sacra- 
mento, Cal., to Reno, Nev., and is prosecuted for violation of the Act. Its 
defence is that if the sale of lottery tickets is immoral, such sale took place 
within the State of Nevada and is subject only to the laws of that State. It is 
not subject to the regulation of Congress as the tickets were not offered for sale 
while in transit. Decide the case with reasons. 

23. Could Congress forbid the passage interstate of persons as well as 
articles, for an immoral purpose? 

24. Can the hours of labor for men be constitutionally limited to nine per 
day in the railway business? Reasons and authority. 

*^25. If a competent body of medical authority testified that the given in- 
dustry X generally considered safe, was, in the light of newer scientific researches 
the cause of certain serious diseases, would the Supreme Court uphold the 
constitutionality of a State law limiting the hours of labor of men in that indus- 
try? Reasons and authority. 

26. A Slate passes a law forbidding the sale of imitation silk within the 
State unless the imitation cloth is so branded or marked or labelled, the purpose 
being to prevent fraud and deception. A retail dealer who is arrested for viola- 
tion of the Act claims that the imitation silks which he sold were brought in 
from another State ami were therefore in interstate commerce, having been sold 
in the original package. I >ecide the case with reasons and authority. 

27. Would the decision have been different if the law had forbidden the sale 
of imitation silks under any condition? Reasons and authority. 

28. May the state Legislature pass any law that it pleases to remedy social 

injustices? Reasons. 

*- 2Q. Could it provide that all property must be surrendered to the State 

which would then divide it equally among ail the people? Reasons. 

30. Can the United States or a State regulate the contracts o{ sailors in 
such a way as to require witnesses in eider that the contract shall be valid? 

31. A federal law requires that sailors' wages must be paid within two days 



5 1 8 THE NEW AMERICAN GOVERNMENT 

after the end of the agreement. A vessel owner complains that this is a violation 
of his liberty in making contracts and is therefore unconstitutional. Decide with 
reasons. 

32. A State usury law provides that no more than 6% interest may be 
charged on ordinary debts. Is this in violation of liberty and property under 
the 14th Amendment? Reasons. 

33. A corporation prosecuted under the Sherman Act claims in its defence 
that the law is unconstitutional because it prevents persons from making such 
contracts and agreements as they please and therefore violates their liberty 
and property under the 5th Amendment. Decision with reasons. 

34. A State forbids employers making contracts with their workmen to 
provide that the workmen will not sue the employer for damages if they are 
injured in the course of employment. Would such a law be constitutional? 
Reasons. 

35. An employer makes a contract of this nature with one of his workmen 
and gives him $500 to sign it. Later the workman is injured and sues his em- 
ployer in violation of the contract. Is the contract binding? 

36. Give Justice Holmes' doctrine of the police power in Noble State Bank 
v. Haskell. 

37. Prepare a short essay on the extent and nature of the police power 
showing its limits, its necessity and its dangers and giving your impressions as 
to the extent to which individual welfare is dependent upon government action 
and individual effort respectively, with examples from your own observation. 



CHAPTER XXV 

CONSTITUTIONAL PROTECTIONS— Continued 
TAXATION 

Protections against Unconstitutional Taxes.— Another field in 
which the rights of all classes need special provision and care is that 
of taxation. Most of the constitutional safeguards that we have 
been considering, are also strong protections against improper State 
tax levies. 1 Of these the most important are the "liberty and 
property," and the "equal protection" clauses and the commerce 
clause of Section 8 of Article i. The latter by giving to Congress 
the control of interstate trade, prevents the States from interfering 
by taxation with that form of business. We shall consider the chief 
problems which have come up in this field under the following heads: 

The public purpose of taxation. 

State taxes on the Federal Government. 

On bonds of other States. 

On its own bonds held by non-residents. 

On national trade. 

On railways and other carriers. 

On ordinary business corporations engaged in interstate trade. 

State taxes favoring the products of its own soil. 

State taxes with progressive rates. 

The need of a revision of the State tax system. 

The Public Purpose of Taxation. — May a State or city govern- 
ment tax its people for any purpose that it pleases? This question 
which often arises, was ruled on in the case of Loan Association v. 
Topeka, 20 Wallace, 655. A law of Kansas had authorized cities 
"to encourage the establishment of manufactures and such other 
enterprises as may tend to develop or improve the city, cither In- 
direct appropriation from the general funds, or by the issuance oi 
the bonds of such city." The city oi Topeka had accordingly issued 
bonds and had levied a tax to secure funds for paying oii the bonds; 
it had then granted to an outside manufacturing company some oi 
the bonds as an inducement lo Locate within the city. The validity 
of a loan and lax for this purpose having come into litigation, the 
ease was appealed to the national Supreme Court. It was argued 
against the tax that the property of citizens was being taken from 
them to be given to a private company and that this was in reality 

1 Since wo have already considered this subject, partly, in the Chapter on 
Federal Taxation ami Finances, the present chapter is downed chiefly to the 
protections against illegal State taxes. 

S*9 



520 THE NEW AMERICAN GOVERNMENT 

not taxation at all but an abuse of the State's public powers. In 
support of the constitutionality of the tax it was urged that it had 
been levied in pursuance of the regular authority of the legislature 
and that the money had been properly used to encourage the 
manufacturing interests of the community. The Supreme Court 
held that there was a sharp distinction between levies for a public 
purpose and for a private one. A sum collected by government for 
the benefit of private individuals was not a tax but a taking of 
property. "A tax" says Webster's Dictionary, "is a rate or sum 
of money assessed on the person or property of a citizen by govern- 
ment for the use of the nation or State. Taxes are burdens or 
charges imposed by the legislature upon persons or property, to 
raise money for public purposes." In deciding whether a rate is for 
public or private purposes, courts must be governed mainly by the 
course and usage of the government. The objects for which taxes 
have been customarily levied were objects found necessary to the 
support and for the proper use of the government. Whatever per- 
tains to this, and is sanctioned by time and the acquiescence of the 
people, may be considered a public use, but the Topeka tax, in 
favor of a manufacturer who was to locate his iron works in the 
city would open the door for a great host of applicants for sub- 
sidies from perhaps two-thirds of the business men in the com- 
munity. It could not be considered a public purpose, and was 
therefore unconstitutional. This case establishes firmly the 
principle that a public object must be served by State and local 
levies. 

Is the Purchase and Ownership of a Public Utility Industry a 
" Public Purpose" ? — This question was submitted to the Massa- 
chusetts Supreme Court by the legislature of that State — Opinion 
of the Justices, 150 Mass. 592; 1890 — the fund being for the pur- 
chase of plants to manufacture and distribute gas and electricity. 
The Justices answered that if the legislature wished to allow taxa- 
tion and loans for the common convenience and welfare of the 
inhabitants by giving the municipalities the power of purchasing, 
owning and operating their own gas and electric plants, such pur- 
pose was to be considered a public one, and therefore, the tax would 
be constitutional. Later the same question arose in reference to a 
legislative bill, authorizing cities to buy and sell coal and wood for 
fuel to their inhabitants. Here the Justices were of the opinion that 
the particular industries mentioned were not sufficiently public to 
render this a public purpose. They considered the use of tax 
funds to this end unconstitutional. 1 We must observe, however, 
that an industry may by its surrounding conditions, slowly pass 
from a private to a public nature. In certain circumstances the 
coal business ceases to be one of private concern, and interests the 
entire public to such an extent that a strike in the industry must be 

1 The courts of other States however have upheld taxes for the establish- 
ment of local fuel-yards. 



CONSTITUTIONAL PROTECTIONS 521 

settled in order to protect the public against serious, irreparable 
losses. In the same way the use of public funds to acquire and 
operate an industry may at one time be unconstitutional because 
the business is not a public one, while at a later period such pur- 
chase and operation may well be thought to be of such great com- 
mon advantage as to make the purchase a public purpose and there- 
fore constitutional. The organization and control of many of our 
greatest industries has so rapidly changed in the last few decades 
as to require us to change accordingly our public law governing 
such industries. Railways may legally receive State aid. 

A long series of decisions has upheld such a system because it is 
for a public purpose. The whole public has such a direct interest 
in the means of transport and the circulation of business in general 
that the benefits of such a system accrue largely to the entire com- 
munity. So far as the Federal Constitution is concerned, the 5th 
and 14th Amendments liberally construed would allow either 
Congress or the States to use the proceeds of taxation in this way 
for the encouragement of an industry such as railroading, which is 
distinctively a public service business. Despite this interpretation 
of the Federal Constitution, however, the State constitutions forbid 
the pledging of the State's credit for this purpose because of the 
unfortunate influence which such laws have upon the State legis- 
lature. 

State Taxes on U. S. Bonds and on Parts of the Federal Govern- 
ment. — We have already seen that a State must not tax the various 
means used by the National Government in carrying out its powers, 
because such a tax would be an interference with the power of the 
Federal Government. This was first decided in McCulioch v. Mary- 
land, 4 Wheaton, 316; 1819. Among the important results of this 
ruling is the exemption of Federal bonds from State taxes. In the 
case of Weston v. Charleston, 2 Peters, 449; 1829, the city had 
levied a tax on many kinds of personal property, including the 6% 
bonds of the United States, and the tax was collected from all 
residents of Charleston owning such property. Weston owned sev- 
eral national bonds and he paid the tax under protest, afterward 
suing the city to recover the amount paid. His suit being appealed, 
the Supreme Court decided in his favor, holding that (1) the 
Constitution, Article 1, section 8, gives to Congress the power "to 
borrow money on the credit of the United States;" (2) the borrow- 
ing power is usually exerted by selling government bonds to the 
people; the money from the sale oi these bonds forms a loan to the 
government ; (3) a tax by a State, or by its agent, a city, upon these 
bonds would reduce their value, make them less desirable invest- 
ments and Interfere with their sale, thereby also inter t 
borrowing power of the Government. Accordingly the State tax was 
declared unconstitutional. Since the same principle would apply 

to any State taxes on national bank stock and national bank notes, 
and since the National Government does not wish to deprive the 



52 2 THE NEW AMERICAN GOVERNMENT 

States of their tax revenue from these sources, Congress has pro- 
vided by Act of 1894 that the States may tax, as money on hand or 
on deposit, the national bank notes belonging to private individ- 
uals, and that they also may tax as personal property the shares of 
national bank stock (Act of 1864) owned by persons within the 
State, provided this taxation is at the same rate as on other similar 
classes of personal property, and provided that each State taxes 
only its own residents on this property. 

Can one State tax the bonds of another? — The only portion 
of the Constitution which seems applicable is Section 1, Article 4, 
providing that full faith and credit shall be given in each State to 
the public acts of every other State. In Bonaparte v. The Tax 
Court, 104 U. S. 592; 1882, Maryland had included in the tax list 
of a resident the bonds of certain other States and cities, owned by 
him, some of which had been exempted from taxation by the States 
issuing them. The question was raised, — does not the "full faith 
and credit" clause 1 require Maryland to exempt from taxation the 
bonds or loans and obligations of its sister States, owned by res- 
idents of Maryland? The Supreme Court held that the Maryland 
tax on State bonds was constitutional, because the other States in 
issuing their bonds or in exercising any of their other powers could 
only use their authority within their own boundaries. If they 
chose to borrow money by floating bonds which were purchased by 
residents of Maryland, they could not extend their authority beyond 
the limits of their own territory, nor dictate to Maryland what 
she should tax and what she might not. If they could do so then 
every State might interfere with the internal affairs of every other 
State, which was unthinkable. Such an interference was never 
intended by the "full faith and credit clause" of Article 4. That 
clause aimed simply to secure and protect the validity of State 
public acts, records and proceedings, when called in question in 
other States. The result of this interpretation is that each State has 
full liberty to tax the securities of its sister commonwealths which 
belong to its own residents. 

A State Tax on its Own Bonds owned by Non-residents. — Can 
one State tax the residents of other States upon their ownership of 
its bonds? In Murray v. Charleston, 15 Wallace, 300, the city of 
Charleston having issued bonds, later levied a tax on personal 
property and sought to collect this tax from those who held its own 
bonds. The tax was not disputed so far as it applied to all personal 
property within the city, including in such personal property the 
city bonds owned by its residents, but as applied to persons outside 
the State, the issue was doubtful. The city had instructed its 
Treasurer, in paying the interest on the bonds, to deduct 5% of the 
interest in payment of the tax, and this deduction was protested by 
the bond-holders resident outside the State. The Supreme Court 

1 Article 4, Section 1 ; Full faith and credit shall be given in each State to the 
public acts, records and judicial proceedings of every other State. 



CONSTITUTIONAL PROTECTIONS 523 

decided that such a deduction was in substance a violation of the 
contract which the city had made with its creditors, when it issued 
the loan. Having agreed to pay them 6% interest the city, by 
deducting a portion of the interest, was in substance scaling down 
its interest rates, and thereby breaking its agreement to pay the 
higher rate. This was a violation of Section 10, of Article 1, of the 
Constitution, which provides that no State shall make any law 
violating the obligation of contracts, — hence, the tax as ^vied on 
outside bondholders was unconstitutional. 

State Taxation of National Trade. — The protection of national 
commerce from State levies and interference was one of the main 
reasons why the commercial interests of the country favored the 
adoption of the Constitution in 1787. This simple, uniform, 
national control of trade, and exemption from local burdens, has 
been a strong feature of the constitutional protection of business. 
The general rule, as we have already seen, is that the State may not 
tax interstate trade, because it would interfere with the Federal power 
to regulate commerce. This simple principle is at times difficult to 
apply, because of the many complex questions which constantly 
crop up in business between different sections of the country. 
For example, when has an interstate shipment of goods legally com- 
menced, so that State taxation may not be levied? In Coe v. Errol, 
116 U. S. 517; 1886, this interesting problem arose as to a shipment 
of logs which had been placed in the river by Coe at the town of 
Errol. Other logs belonging to him had floated down from another 
State, and both lots were frozen in the river waiting for the spring 
freshets to carry them down the stream into another State. The 
town had levied a tax on logs within its territory; Coe claimed that 
his property was exempt, in that it was destined for interstate com- 
merce. The case coming to the Supreme Court it was held that 
after the logs had started on their journey they were exempt from 
local taxes; accordingly such logs as had come down the river from 
another State and were held by the ice, were to be regarded as still 
in process of interstate shipment and could not be taxed by the 
town, but that those logs which had simply been assembled at the 
town by Coe and the real shipment of which had not vet actually 
commenced, could not be exempted from taxation. 

State Taxes on " Original Packages." — Can a State tax goods 
arriving from oilier States while they are still in the original pack- 
age? The main principles which govern this constantly recurring 
question have been decided in the following brief series oi decisions: 

In Woodruff v. Parham, 8 Wallace, 1 23; [867, the city had levied a 
general tax on merchants and auctioneers, which was collected from 
Woodruff, an auctioneer who had sold only goods shipped from 

Other Stalin and had offered them for sale in the original package. 
The amount of the tax was fixed according to the amount o\ sales, 

and Woodruff protested against the levy on the ground that it was a 

tax on interstate commerce and vis such was (a) an interference by 



524 THE NEW AMERICAN GOVERNMENT 

the State with the congressional power over commerce and (b) that 
Section 10, Article i, forbade the States to levy "duties on imports 
or exports." The Supreme Court, however, deciding against the 
auctioneer, upheld the city tax and ruled that (a) the tax was not 
aimed at interstate commerce, nor did it fall peculiarly upon such 
commerce but rather upon the proceeds of the sale, that after goods 
shipped from one State to another were offered for sale they had 
mingled with the property in the State and in doing so became subject 
to State taxation, and (b) the expression "duties on imports and 
exports" in Section 10 of Article I, did not refer to trade between 
the States but to foreign trade only, since an "import" or "export" 
in the sense of the Constitution was a shipment from or to a foreign 
country. A tax on goods which had come from one State to another 
was not a tax on "imports." This ruling has since been followed in 
all the subsequent decisions. 

The second step was taken by the Supreme Court in Brown v. 
Houston, 114 U. S. 622; 1885, where a barge of coal had been 
shipped down the river to New Orleans, tied up to the dock and 
a placard immediately placed upon it "for sale." The coal being 
taxed before any of it was sold and while the barge was still at the 
dock, the owner protested the payment of the tax, on the ground 
that the levy was made while the goods were still in the original 
container and while they had not yet been mingled with the other 
commerce of the State. Hence, he claimed, the levy was unconsti- 
tutional because it interfered with interstate commerce. To this 
the Supreme Court answered that when goods were offered for sale 
after having come to rest within the State they formed part of the 
wealth in the State and that such wealth was taxable by the State 
government. Undoubtedly the State could tax all the property 
within its boundaries regardless of whether that property had 
previously been in interstate commerce or not, and the exact time 
when it could levy such a tax was when the products which had so 
circulated in interstate commerce, "came to rest," or reached their 
owners within the State. As evidence that the coal had so come to 
rest within the commonwealth, the fact that it was offered for sale 
was conclusive. The State tax was therefore constitutional, being 
a tax not upon interstate trade but upon wealth within the State. 
This tax case marks an important divergence from the rule con- 
cerning State regulation as distinct from State taxation of interstate 
trade. The general rule on regulation is that the State may not 
regulate the first sale in the original package. An interesting varia- 
tion of the principle is seen in the last case governing this point — 
the American Steel and Wire Company v. Speed, 192 U. S. 500; 
1904. Here the State of Tennessee had levied a merchants' tax 
upon persons engaged in trade. The Steel Company in Illinois 
manufactured wire nails and fences, and shipped large quantities 
of goods to Memphis, Tennessee, at which point they were taken in 
charge by the Patterson Transfer Company, placed in storage 



CONSTITUTIONAL PROTECTIONS 525 

warehouses and there held in the original packages while the sales 
agents of the Steel Company solicited orders for the products. 
The amount of unsold stock on hand in storage varied from $30,000 
to $100,000, according to the season. When orders were received 
by the Steel Company in Illinois for the Memphis district they were 
turned over to the transfer company at Memphis and the latter 
then shipped the goods to the purchasers. The Steel Company, 
having been taxed by Tennessee upon its goods in storage, protested 
that the storage of the goods in Memphis was only a temporary 
halt in their interstate journey and that the tax was therefore a 
State tax upon interstate commerce and as such, unconstitutional. 
The Supreme Court found that the State tax was constitutional 
because the goods were held for an indefinite time awaiting sale, and 
that during this time they were a part of the wealth within the 
State and subject to its taxation. The fact that they had been 
shipped from Illinois to Memphis and that they might later be 
shipped out of the State to other surrounding districts was not 
sufficient proof that they were destined or consigned to interstate 
commerce while in storage in the city. A State might tax all of the 
wealth which had "come to rest" within its boundaries even 
though such wealth might later by subsequent sale, be transferred 
outside the State. 

State Taxes on Wheat Shipments. — For many years it has been 
the practice of the railways to allow shippers of certain kinds of 
freight, such as grain, to store their goods at some central point in 
an elevator or warehouse and reship them later to their final 
destination. The immense volumes of wheat that flow from the 
Northwestern fields to the collecting points, for shipment Eastward 
over the Lakes and the railways, are sold half a dozen times while 
on their way; they are stopped at Duluth, Superior, and countless 
other points and graded, stored in elevators, even ground into 
Hour and shipped again. Often the shipments are consigned in 
blank or sent to an Eastern commission merchant with the 
express purpose of selling them while in transit. At each one of 
these points the possibility of State taxation offers a practical ques- 
tion of much importance to the shipper. In Bacon V. Illinois, 227 
U. S. 504; [913, a series o\ grain shipments in transit had been 
bought by Bacon. They were all consigned to Eastern ports and 
were all given the usual privilege of stopping at Chicago to he 
inspected, graded, sold and reshipped or withdrawn. Bacon 

availed himself of this provision, placed them in Iiis own pri\ 
elevator at Chicago where they were graded, and then shipped on to 
their original destination on the Atlantic seaboard. While in his 
private elevator they were taxed as personal property under the 
Illinois law, and to recover payment Bacon brought suit on the 

-round that the shipments were still in interstate eonuueree and 
therefore exempt from State taxation. The United Slates Supreme 
Court, however, upheld the Slate tax and in an opinion by Justice 



526 THE NEW AMERICAN GOVERNMENT 

Hughes ruled that the grain while in the elevator was not strictly 
in course of transportation, — it might, under the shipping contract, 
be either sold or offered, for sale or withdrawn from shipment or 
continued in transportation : — and with all these alternatives before 
him the owner was able to dispose of his property with unrestricted 
freedom. Regardless of the use which was ultimately made of the 
property, the Court held, while it was in the owner's storage house 
awaiting his decision, it was undeniably a part of the wealth within 
the State and a State tax on such property was clearly not an inter- 
ference with national commerce and was accordingly constitutional. 
This decision like many others in the same field is a direct increase 
in the State's power to levy taxes that may prove a burden on 
national trade. 

Can a State Exempt its own Products from its Taxes? — An in- 
teresting form of State discrimination against national commerce 
is seen in Darnell Company v. Memphis, 208 U. S. 113; 1906. Here 
the State of Tennessee had levied a general tax on manufactured 
goods, but exempted those manufactured from the products of the 
soil of Tennessee. The effect of such a law would clearly be to dis- 
courage interstate commerce, even though the tax were levied after 
the products were no longer in national trade, but had become a 
part of the general wealth within the State. For by such a dis- 
crimination the State could so heavily burden the products of other 
States through taxation, that interstate trade would in effect be 
stopped. The Darnell Lumber Company was taxed under the law, 
on some $19,000 worth of logs in its yards, which it had purchased 
in other States; it brought suit to recover the tax on the ground 
that the State must not discriminate against the products of other 
States. Upon the suit coming to the Federal Supreme Court it was 
held that the company's contention was correct and the State tax 
law unconstitutional. The Court ruled that since the power to 
regulate interstate trade belonged to Congress, any attempt by a 
State, through a tax or otherwise, to discourage or discriminate 
against trade from other commonwealths was in substance a regula- 
tion of interstate commerce and was void. It could make no 
difference whether the tax was imposed when the goods first entered 
the State or after they had been within it for some time and had 
been manufactured into finished products of a different form, — the 
State must not attempt to trace them back to their origin and lay a 
heavier tax upon them than upon the products of its own soil, since 
such a tax must certainly operate as a burden upon interstate 
trade and thereby violate the plain intent of the Constitution. 

Drummers. — Are travelling salesmen subject to taxation as 
they pass from State to State securing orders, or can they claim to 
be exempt under the interstate commerce clause? This question 
reached the Supreme Court in Robbins v. The Shelby County Tax- 
ing District, 120 U. S. 489; 1887. Robbins was a travelling salesman 
for a Cincinnati firm; he was soliciting orders in Memphis, Tenn., 



CONSTITUTIONAL PROTECTIONS 527 

and carried his samples with him. A statute of Tennessee provided 
that drummers and all persons who did not have a regular house 
of business in the taxing district, if they offered goods for sale by 
sample, should pay to the county a license tax of $10.00 per week 
or $25.00 per month. Robbins was prosecuted for failure to pay 
the tax, and his appeal was taken to the Supreme Court on the 
ground that he was engaged in interstate trade, as a representative 
of a house in another State, and that he therefore could not be 
interfered with by State taxation of the kind described. The 
Court held that such a tax was unconstitutional, as an interference 
with interstate commerce, and its reasoning in this case has been 
followed in a number of other decisions and is worthy of special 
notice. Can the people of one State, it asks, prevent those of 
another from sending in goods by the ordinary channels of 
interstate trade? Would not such a restriction affect the very 
foundation of trade? An outside manufacturer cannot sell his 
goods in the State without having in some way obtained orders 
therefor. He must not be compelled to send them at a venture 
without knowing whether there is a demand for them, nor must he 
be obliged to limit himself to the use of the mails to secure orders. 

The truth is, that, in numberless instances, the most feasible, 
if not the only practicable, way for the merchant or manufacturer 
to obtain orders in other States is to obtain them by personal 
application, either himself, or by some one employed by him for 
that purpose; and in many branches of business he must necessarily 
exhibit samples for the purpose of determining the kind and quality 
of goods he proposes to sell, or which the other party desires to 
purchase. 

Since the Tennessee tax interfered with this undoubted right 
of the citizens of other States to take orders for goods in Tennessee, 
it was a hindrance and obstruction of interstate commerce, and an 
interference with the power of Congress over such trade, and 
accordingly unconstitutional. 

Can an Interstate Salesman's Local Construction Work be 
Taxed? — An interesting counterpart is offered in E. A. Browning 
v. The City of Waycross, 233 V. S. 10; 1011. Here the city 
authorities of Waycross, Georgia, had levied an annual tax of 
$25.00 upon lightning rod agents or dealers engaged in putting ///> 
lightning rods within the corporate limits oi the city. Browning 
Was the agent of a St. Louis corporation on whose behalf he had 
solieited orders for the sale oi lightning rods; he had received the 
rods when shipped from St. Louis ami had erected them for the 
customers. In fact, the contract oi sale of the rods from St. Louis. 
Missouri, to Waycross, Georgia, whieh was admittedly interstate 

commerce, included an agreement to erect the rods on the buyer's 
property. Browning, having failed to take out a license, was 
arrested and lined, lb- appealed to the Federal Supreme Court on 
the ground that the tax was a State levy upon interstate commerce 



528 THE NEW AMERICAN GOVERNMENT 

and therefore unconstitutional. The Court held that the city had 
the authority to levy such a tax, which was not a levy upon trade 
between the States but upon local business transacted by the 
agent after the interstate sale had been completed. The business of 
erecting the rods had nothing whatever to do with interstate trade 
and could not be made a part of such trade by agreement between 
the buyer and seller, but was purely local in its nature and therefore 
subject to State or city taxation. 1 

Chief Justice White who delivered the opinion, makes the 
principle doubly clear by adding that the Court sharply distin- 
guishes between the agreement covering interstate trade on the 
one hand and local construction work on the other, but this would 
in no way prevent the Court from ruling that the whole transaction 
was interstate commerce "in a case where, because of some intrinsic 
and peculiar quality or inherent complexity of the article, the mak- 
ing of such agreement was essential to the accomplishment of the 
interstate transaction." 

C. O. D. Sales.— Where an object is purchased in one State to 
be shipped to another and paid for C. O. D. a State tax may not be 
levied upon drummers engaged in making these sales. In Norfolk 
Company v. Sims, 191 U. S. 441; 1903, a license tax on persons 
making such sales in North Carolina was declared unconstitutional. 
And where an agent in North Carolina solicited orders for a prod- 
uct, transmitted these orders to his manufacturing concern in 
another State and then received the articles from his employer and 
himself distributed them to the customers who had given him the 
order, it was held that the shipment from the outside, although 
in two parts, viz., from the manufacturer to the salesman and from 
the salesman to the customer, was yet in substance one continuous 
interstate shipment and was therefore not subject to a State tax 

1 "We are of the opinion that the court below was right in holding that the 
business of erecting lightning rods under the circumstances disclosed was within 
the regulating power of the State, and not the subject of interstate commerce, 
for the following reasons: (a) Because the affixing of lightning rods to houses was 
the carrying on of a business of a strictly local character, peculiarly within the 
exclusive control of State authority; (b) Because, besides, such business was 
wholly separate from interstate commerce, involved no question of the delivery 
of property shipped in interstate commerce, or of the right to complete an 
interstate commerce transaction, but concerned merely the doing of a local act 
after interstate commerce had completely terminated. It is true that it was 
shown that the contract under which the rods were shipped bound the seller, 
at his own expense, to attach the rods to the houses of the persons who ordered 
rods, but it was not within the power of the parties by the form of their contract 
to convert what was exclusively a local business, subject to State control, into 
an interstate commerce business, protected by the commerce clause. It is 
manifest that if the right here asserted were recognized, or the power to accom- 
plish by contract what is here claimed were to be upheld, all lines of demarcation 
between national and State authority would become obliterated, since it would 
necessarily follow that every kind or form of material shipped from one State to 
the other, and intended to be used after delivery in the construction of buildings 
or in the making of improvements in any form, would or could be made interstate 
commerce." 



CONSTITUTIONAL PROTECTIONS 529 

until the goods reached the purchaser. Caldwell v. North Carolina, 
187 U. S. 622; 1901. 

Brokers and Peddlers. — -On the other hand, peddlers are in a 
different list from drummers. The peddler may bring all of his 
goods with him from another State, but he invariably sells them, 
not as an interstate order but as single local sales. A license tax 
may therefore be imposed upon peddlers so long as it applies to all 
peddlers in a given class, and does not discriminate against those 
who sell articles produced in other States. 

And where a broker receives and executes orders for the sale of 
goods on future delivery, notably grain and other products, the 
sale and delivery to take place within the same State, he cannot be 
said to be engaged in interstate commerce, because of the fact that 
some of his customers are resident in other States, and send him the 
orders from other States. The contract of sale is here made and 
executed in the State in which the broker's office is located. Ware 
v. Mobile, 209 U. S. 405; 1908. The rule here is substantially the 
same as in the insurance cases, notably Paul v. Virginia, 8 Wallace, 
168; 1868. 

When are Sales Local? — The extent and the limits of State power 
are well illustrated by the Alabama license tax on sewing machine 
sales agents, levied in 191 1. This law imposed a fee of $50 annually 
upon each person or corporation selling or delivering sewing ma- 
chines, in each county in which they are sold or delivered, with an 
additional tax of $25 in each county for each wagon or team used 
in delivering or displaying the goods. The tax did not apply to 
merchants selling machines at their regularly established places of 
business. An additional tax of one-half the above amounts was 
imposed by each county for county purposes. The Singer Sewing 
Machine Company protested the payment of the tax on the ground 
that it was an interference with interstate commerce and this 
protest led to a suit which was decided April 6, 19 14, in the United 
States Supreme Court, Singer Sewing Machine Company v. Brickell 
et al., the State Tax Commission of Alabama. The facts, which 
were agreed upon, were that the Singer machines were brought in 
from outside the State, were consigned to a central store in each 
county and there were loaded upon wagons which were driven 
through the rural sections in search of customers. They were also 
offered for rent. A customer being found, the machine was de- 
livered to him on the spot and the final execution oi the sale took 
place at the county store or place oi business oi the company. This 
the company claimed constituted a complete transaction in inter- 
state commerce and. as such, was exempt from State taxation. 
Hut the Supreme Court held that no element oi interstate trade 
was involved. " In each county there is a store or regular place oi 
business, from which all oi the local agents for the same countv 
are supplied with sewing machines ami appurtenances that are 
to be taken into the rural districts for sale or renting, and all trans- 



530 THE NEW AMERICAN GOVERNMENT 

actions that enter into the sale orienting are completely carried 
out within a single county." The company sold its machines in 
Russell County, Alabama, from a point in Georgia and these trans- 
actions were admittedly interstate commerce and, as such, were 
declared exempt from the State tax by the courts. No better 
illustration of the present limits of State taxation can be found 
than this case which brings out sharply the distinction between 
the peddler or local itinerant sales agent on the one hand, and the 
interstate trader on the other. 

State Taxes on Interstate Railways. — This is probably the most 
difficult of all the questions of State taxation, so far as its con- 
stitutional aspects go. The few leading cases which we have to 
consider on this subject show clearly how great is the need for a 
general revision by Congress of the whole subject of interstate 
commerce and State taxation. 

(a) Can a State tax a railway franchise granted by the United 
States? — In California v. The Central Pacific, 127 U. S. 1; 1888, 
the Federal Government had granted a franchise to the railway to 
engage in commerce between the States and under this franchise 
the company operated in California and Utah. California levied a 
tax upon railways, including their franchises, and sought to collect 
this tax from the Central Pacific which however protested on the 
ground that its permit to engage in interstate commerce came from 
the regulating power of Congress and that this Federal power could 
not be interfered with nor obstructed by a State tax. To this 
contention the Supreme Court gave its approval, ruling that the 
Federal commerce power was supreme and must not be interfered 
with by the States. If the States could require the payment of a 
tax upon a franchise granted by the Federal Government they could 
in substance nullify or lessen the grant made by Congress and 
thereby obstruct its powers and authority. Accordingly the State 
tax was unconstitutional. 

In LeLoup v. Mobile, 127 U. S. 640; 1888, the city of Mobile had 
levied a license tax upon telegraph companies. LeLoup, the local 
agent of the Western Union, being assessed $225 for this license, 
protested the payment on the ground that his company was en- 
gaged in interstate commerce under the National Telegraph Act of 
1866, and was therefore exempt from State taxation on its interstate 
franchise. Here again the Supreme Court upheld the company's 
contention, declaring that Federal commerce, of which the tele- 
graph formed a part, must not be licensed by a State since it was 
under the regulation of the National Government, according to 
Section 8 of Article I. 

Again in McCall v. California, 136 U. S. 104; 1890, the ruling was 
made stronger. McCall was the San Francisco agent of the New 
York and Lake Erie Railway. His work was to solicit passenger 
traffic eastbound over the railway's interstate line. The State hav- 
ing levied a license tax on all railway agents, McCall was asked to 



CONSTITUTIONAL PROTECTIONS 531 

pay $25 license as an agent He claimed exemption on the ground 
that his company was engaged in interstate commerce and that 
being employed to secure interstate traffic he could not be required 
to pay a license to any State for the permission to do so. The 
Supreme Court upheld this view on the same ground, viz., the 
protection of interstate commerce carriers against interference by 
the State government. 

(b) Can a State tax the general property, roadbed, real estate, 
etc., of an interstate line? In Thompson v. Union Pacific, 9 Wallace, 
579; 1869, a State tax was laid on the physical property of such an 
interstate carrier. The company claimed exemption from the 
tax on the ground that it was an interstate railroad, and the Su- 
preme Court answered that the State tax was constitutional when 
levied upon the physical property of all railways both State and 
interstate, within the Commonwealth. That is, if no discrimination 
against interstate carriers was made, the State could tax the 
physical property of all railways in common, so long as it did not tax 
their franchises received from the Federal Government. Here is a 
clear statement of the same rule which we have already considered, 
viz., that the State may tax property within its borders so 
long as that property is not a Federal gift or franchise. 

In Union Pacific v. Peniston, 18 Wallace, 5; 1873, the question 
arose, Can a State tax the general property of an interstate railway, 
when the company has been chartered by the Federal Government? 
The Union Pacific R. R. Co., chartered by Congress, had on its 
Board of Directors two government appointees, received grants of 
land from the Federal Government, enjoyed a loan from the 
United States, and was obliged by the government to keep its 
railroad and telegraph lines in repair and use, to transmit dis- 
patches and transfer Federal mails, troops and munitions of war. 
The county authorities of Nebraska having levied a tax upon real 
and personal property of railways within their district, the company 
claimed exemption under the above conditions, and declared that 
the State tax upon this property would be an interference with the 
railway's powers as an agent of the Federal Government. The 
Supreme Court in ruling upon the case in 1873, distinguished be- 
tween a tax on the properly of an interstate railway and a tax on its 
operations, declaring that a general property tax by the State would 

not be an interference, while a tax on operations might conceivably 

be so levied as to interfere, The State tax was therefore declared 
constitutional, since it did not discriminate against interstate 

railways but was levied similarly upon other corporations within the 

State. Said the Court, -" The exemption of agencies of the Federal 
Government from taxation by the States is dependent, not upon the 
nature' of the agents, nor upon the mode oi their constitution, nor 
Upon the fact that they are agents, but upon the eyeet oi the tax; 
that is, upon the question whether the tax does in truth deprive them 
Of power to serve the government as they were intended to serve it, 



532 THE NEW AMERICAN GOVERNMENT 

or hinder the efficient exercise of their power. A tax upon their 
property merely, having no such necessary effect, and leaving them 
free to discharge the duties they have undertaken to perform, may 
be rightfully laid by the States. A tax upon their operations, being 
a direct obstruction to the exercise of Federal powers, may not be." 

(c) We next come to the problem, to what extent can a State 
tax the actual business of interstate commerce which is going on 
within its boundaries, in the receipts of common carriers or their 
rolling stock, their capital stock and other property. In Pullman 
Company v. Pa., 141 U. S. 18; 1891, the State had attempted to tax 
the capital stock, measuring the tax by the miles covered by 
the company's cars circulating in and through the State. The com- 
pany claimed that such a tax, levied as it was upon the very means 
and instrumentalities of interstate commerce circulating constantly 
in such trade between the States, was clearly unconstitutional as a 
State interference and usurpation of the Congressional authority. 
It was claimed that since the State could not tax the Federal fran- 
chise or the permit of an interstate company to engage in trade as a 
carrier, it certainly could not tax the moving property of the 
company travelling from one State to another in the pursuit of its 
business. The Pennsylvania tax was levied according to what is 
known as the rule of "average habitual use," that is, the total 
track mileage of the cars was measured and it was ascertained 
what fraction or proportion of this total mileage lay within the 
State of Pennsylvania and the tax was then adjusted to this propor- 
tion. The Supreme Court upheld the State tax declaring it to be 
constitutional, on the ground that it was not aimed as a discrimina- 
tion against interstate commerce but was levied upon all railway 
rolling stock within the State. The latter had full authority to tax 
all personal property within its jurisdiction and in doing so it might 
include such personal property as was engaged in interstate com- 
merce along with other personal property. So long as it followed the 
rule of proportion of mileage or average habitual use of the cars 
within the State, it was not taxing such personal property more 
than its proper share and if all the other States were to adopt the 
rule chosen by Pennsylvania such interstate cars would be in no 
danger of double taxation or of interference in a discriminatory 
sense. Accordingly the tax was a proper exercise of the State's 
power and was constitutional. 

(d) The Unit Rule. — Although a State may not require an inter- 
state carrier to pay a license fee for the privileges of interstate com- 
merce, the States have yet evaded the spirit of this rule by laying 
taxes on interstate carriers, according to their rolling stock, as we 
have seen, and according to their real and personal property in the 
State and have even taxed a part at least of their franchises and the 
general value of their business. In levying these "general value" 
taxes, the principle usually followed is that of the Unit Rule. That 
is, the entire property of the company, both within and without the 



CONSTITUTIONAL PROTECTIONS 533 

State, is appraised, or the entire capital stock is calculated, or the 
entire "value" of the company, over its whole system, is calcu- 
lated, and a proportion of this is taxed equal to the proportion which 
lies within the State's limits. By this rule, the State is enabled to 
secure a much higher assessment of the value of the property than 
if it measured only the real estate and personalty actually located 
within its limits, because a railway's market value is much more 
than its real estate and rolling stock. It has an additional value 
that comes from its business connections, its ability to transport 
persons and goods to many States. Accordingly if we wish to 
find the actual value of that part of the railway which lies within 
any State we must calculate not only its real estate and movable 
property but we must also find the State's share of this additional 
value of the entire railway. That is, we must regard the com- 
pany's system as a whole or a unit. For example — in C. C. C. and 
St. L. Railway v. Backus, 154 U. S. 439; 1894, the Indiana law had 
provided that the State Tax Board, in measuring the value of a 
railway for taxation purposes, should appraise its entire system, and 
should tax that proportion of this value which was represented by 
the proportion of the total mileage of the railway that lay within the 
State. If the railway had two- thirds of its mileage within the State, 
two-thirds of its entire value should be taxed. The railway objected 
to the appraisal of its total system, contending that this was a tax 
on its interstate commerce business, and was, therefore, an interfer- 
ence with the Congressional power to regulate commerce, and, hence, 
unconstitutional. But the Supreme Court ruled that the State was 
not interfering with the interstate business of the railway, since it 
did not tax any larger part of the railway's business than could 
fairly be said to be located within the State, and which accordingly 
formed a part of the wealth of the State. If the State did not reach 
outside its own jurisdiction, and interfere with commerce in other 
States, but confined its taxing power to its own just proportion of 
the railway's business, as represented by its proportion of the 
railway's mileage or by some other equitable method of measuring 
its proportion, the State was using its taxing power in a constitu- 
tional way. 

"The true value of a line of railroad is something more than an 
aggregation of the values of separate parts of it, operated separately. 
It is the aggregate of those values plus that arising from a connected 
operation of the whole, and each part of the road contributes not 
merely the value arising from its independent operation, but its 
mileage proportion of that (lowing from u continuous and connected 
operation of the whole. This is no denial of the mathematical 
proposition that the whole is equal to the sum of all its parts, be- 
cause there is a value created by and resulting from tin' combined 
operation of all its parts as one continuous line. This is something 
which does not exist, and cannot exist, until the combination is 
formed. A notable illustration of this was in the New York Central 



534 THE NEW AMERICAN GOVERNMENT 

Railroad consolidation. Many years ago the distaice between 
Albany and Buffalo was occupied by three or four conpanies, each 
operating its own line of road, and together connecting the two 
cities. The several companies were united and formtd the New 
York Central Railroad Co., which became the owner oi the entire 
line between Albany and Buffalo, and operated it as a single road. 
Immediately upon the consolidation of these companies, and the 
operation of the property as a single, connected line of railroad 
between Albany and Buffalo, the value of the property was recog- 
nized in the market as largely in excess of the aggregate of the 
values of the separate properties. It is unnecessary to en£er into 
any inquiry as to the causes of this. It is enough to notice th\e fact. 
Now, when a road runs into two States each State is entitled to 
consider as within its territorial jurisdiction and subject to \ the 
burdens of its taxes what may perhaps not inaccurately be c de- 
scribed as the proportionate share of the value flowing from tfr.e 
operation of the entire mileage as a single continuous road. It is 
not bound to enter upon a disintegration of values and attempt to 
extract from the total value of the entire proper! that which would 
exist if the miles of road within the State were operated separately." 
(e) A more striking instance of the Unit Rule is seen in the Adams 
Express Company v. Ohio, 165 U. S. 194; 1897. Here Ohio had 
taxed the express company, measuring its tax not according to the 
real estate or personal property of the company located within the 
State, but appraising rather the entire value of the company's busi- 
ness throughout the United States, and levying its tax on that pro- 
portion of this whole value, which was measured by the proportion 
of its mileage within the State of Ohio. The company, in protesting 
against this application of the Unit Rule, declared that the State 
should tax only the company's horses, wagons, harness, stables, real 
estate, pouches, baskets and other property located within the State. 
But the Supreme Court again upheld the Unit Rule, and decided 
(1), that the physical property of the company — that is its visible, 
tangible property — formed only a part of its total assets and value 
for taxing purposes ($42,000 worth of express company property 
in Ohio produced earnings of $282,000 in 1895); (2) that the State 
had a right constitutionally to tax its due proportion of this total 
value, and (3) that this proportion could properly be measured by 
ascertaining the total mileage of the company's business and the 
part of this mileage which lay within the State. It is noticeable 
that both in this and the preceding case the Court ruled that the 
company's financial value arose largely from its business as a whole, 
including its ability to transmit goods from one point in the country 
to others in distant States; that is, that a State could tax its share 
of the company's wealth and value and that part of this value came 
from its connections with offices in other States, in short from in- 
terstate business. Such is now the accepted rule of State taxation; 
yet, it must be remembered that the effect of this rule, while favorable 



CONSTITUTIONAL PROTECTIONS 535 

to the State treasury, is to permit the State taxation of interstate 
trade. The State's interference both in the regulation of rates and 
in taxation is already a serious hindrance in railways and other 
enterprises. A complete revision of the State taxing system is needed, 
in order to prevent this important power from being used for the 
very purpose which it was the design of the Constitution to prevent — 
viz., to interfere with interstate commerce. The decisions above 
described have had the dangerous effect of defeating this very aim. 
We need a complete freedom from State taxation for all interstate 
property of common carriers, and a uniform system of taxation 
levied on such property by the national authorities. 

(f) State Taxes on Gross Receipts. — Undoubtedly the Supreme 
Court at times sees the need for a more pronounced national view 
of national commerce, as in its decision in Galveston Railway v. 
Texas, 210 U. S. 217; 1908. This case limits the State's power within 
reasonable bounds and frees national commerce from undue inter- 
ference by local taxation. The State of Texas had imposed upon 
railways an occupation tax equal to 1% of the gross receipts. If 
the railway lay partly within and partly without the State, the tax 
was to be equal to such proportion of the 1% as the length of the 
line within the State bore to its entire length. The Galveston Com- 
pany lay wholly within the State but connected with interstate 
lines, and a large part of its revenue was derived from interstate com- 
merce. The tax was protested by the corporation, and the case 
going to the United States Supreme Court, the law was declared 
unconstitutional on the ground that it was an effort to reach the 
gross receipts from both intra and interstate commerce. As such 
its effect was to interfere with the free passage of the latter commerce, 
which interference was violative of the Congressional authority. 
The State made a strong defence, claiming that it was not attempting 
to tax the company's gross receipts from either intra or interstate 
traffic but was using them as a measure of the value of the property 
per mile. Such a use of gross receipts as a measure of property 
value had been permitted by the Supreme Court forty years ago 
in Maine v. The Grand Trunk Railway, 142 U. S. 217, and the State 
relied upon this precedent. But the Court held that unless the 
whole plan of taxation presented in the law showed clearly that the 
State was aiming only to use the receipts as a measure of the value 
of the company's property in the State, then the inference must 
be drawn that the legislature was really taxing those receipts and 
this was unconstitutional so far as interstate traffic was concerned. 
Unfortunately for the State's claim, it had also levied other taxes 
on the property of the company, so that the new tax was really an 
additional burden which could not be justified as a tax on property 
but must be regarded as a levy on the receipts, and as such, an un- 
constitutional interference with interstate trade. 

State Taxes on Total Capital Stock. — While the Court was 
closely divided in the Galveston case, it showed the same determina- 



53^ THE NEW AMERICAN GOVERNMENT 

tion to protect interstate business in the later decisions in Western 
Union Company v. Kansas, 216 U. S. 1; 1909; and Pullman Co. v. 
Kansas, 216 U. S. 56; 1909. Here Kansas had attempted to tax 
all the foreign corporations in her boundaries, even though engaged 
in interstate commerce, a certain percentage of their entire capital 
stock, as a permit tax for the privilege of transacting intrastate 
business within her boundaries. The Western Union and the Pull- 
man companies refused to pay the levy and the State sought to oust 
them from the further transaction of local business. On this question 
the Supreme Court again divided, but the majority held that a tax 
upon the entire capital stock was a burden upon all the business of 
the company, both State and interstate, and upon all its property 
interests, both within and without the commonwealth. The tax, 
therefore, was a levy both upon interstate commerce, and upon prop- 
erty lying outside the jurisdiction of Kansas, and as such was un- 
constitutional. The Court admitted that Kansas could require an 
interstate corporation to pay a reasonable license tax for the privilege 
of doing local business within the State but it is altogether a different 
thing for Kansas to deny it the privilege of doing such local business 
beneficial to the public, excepting on condition that it shall first 
pay a given percentage of all its property wherever situated, and of 
its business in and out of the State. 

Applying these principles to the Kansas tax, the Court held: "On 
the contrary, it is to be deduced from the adjudged cases that a 
corporation of one State, authorized by its charter to engage in law- 
ful commerce among the States, may not be prevented by another 
State from coming into its limits for all the legitimate purposes of 
such commerce. It may go into the State without obtaining a li- 
cense from it for the purposes of its interstate business, and without 
liability to taxation there, on account of such business. 

"But it is said that none of the authorities cited are pertinent to 
the present case, because the State expressly disclaims any purpose 
by the statute in question to obstruct or embarrass interstate com- 
merce, but seeks only to prevent the Telegraph Company from 
entering the field of domestic business in Kansas without its con- 
sent and without conforming to the requirements of its statute. 
But the disavowal by the State of any purpose to burden interstate 
commerce cannot conclude the question as to the fact of such a 
burden being imposed, or as to the unconstitutionality of the statute 
as shown by its necessary operation upon interstate commerce. If 
the statute, reasonably interpreted, either directly or by its necessary 
operation, burdens interstate commerce, it must be adjudged to be 
invalid, whatever may have been the purpose for which it was en- 
acted." 

"Looking, then, at the natural and reasonable effect of the statute, 
disregarding mere forms of expression, it is clear that the making 
of the payment by the Telegraph Co., as charter fee, of a given per 
cent of its authorized capital, representing, as that capital clearly does, 



CONSTITUTIONAL PROTECTIONS 537 

all of its business and property, both within and outside of the State, 
a condition of its right to do local business in Kansas, is, in its essence, 
not simply a tax for the privilege of doing local business in the State, 
but a burden and tax on the company's interstate business and on 
its property located or used outside of the State." Mr. Justice 
White added, "Moreover, to me it seems that where the right to do 
an interstate business exists, without regard to the assent of the 
State, a State law which arbitrarily forbids a corporation from carry- 
ing on with its interstate commerce business the local business, would 
be a direct burden upon interstate commerce." 

Gross Receipts as a " Measure of Value." — For a time it ap- 
peared that the Supreme Court would follow these decisions and 
guard the interstate carriers more adequately against interference 
with their business in the form of State taxes on their capital stock 
or receipts from interstate commerce. But in 191 2 the fluctuating 
majority in the Court turned once more in favor of State taxation. 
In U. S. Express Co. v. Minnesota, 223 U. S. 335; 191 2, the State 
had levied a tax of 6% on the gross receipts in the State, from all 
sources including both intra and interstate business; this was in 
lieu of all other taxes on personal and real property. The express 
company protested on the ground that such a levy was a burden 
on the interstate business of the company and was to that extent 
unconstitutional as an interference with the powers of Congress. 
The company cited the decision already mentioned in Galveston 
Ry. v. Texas. But the Supreme Court held that there was a dis- 
tinction between tax laws burdening interstate commerce and those 
measuring the tax to be paid by the income from all sources, including 
even that from interstate business. The latter were constitutional 
if the receipts or income were taken as a real measure of the value of 
the property in the State and if the tax were in lieu of other taxes. 
Speaking of the Galveston and Western Union decisions just men- 
tioned, the Court said: 

"While we have no disposition to detract from the authority of 
these decisions, this court has had also to consider and determine 
the effect of statutes which undertake to measure a tax within the 
legitimate power of the State by receipts which came in part from 
business of an interstate character. In that class of cases a distinc- 
tion was drawn between laws burdening interstate commerce, and 
laws where the measure of a legitimate tax consists in part of the 
avails or income from the conduct of such commerce. 

"In Wisconsin & Michigan Railway Co. v. Powers, 101 U. S. 379; 
1903, a tax was sustained which made the income oi the railway 
company within the State, including interstate earnings, the prima 
facie measure of the value of the property within the State for the 
purpose of taxation. In the course oi the opinion this court said 

(p. 387) J 

"'In form the tax is a tax on the property and business of such 
railroad corporation operated within the State, computed upon 



53 8 THE NEW AMERICAN GOVERNMENT 

certain percentages of gross income. The prima facie measure of 
the plaintiff's gross income is substantially that which was approved 
in Maine v. Grand Trunk Ry. Co., 142 U. S. 217; 1891.' 

" A question, in principle, not unlike the one here presented, came 
before this court in Flint v. Stone Tracy Co., 220 U. S. 107; 191 1. In 
that case it was contended that the income of the corporations sought 
to be taxed under the Federal law, included, as to some of the com- 
panies, large investments in municipal bonds and other securities 
beyond the Federal power of taxation. It was held, after a review 
of some of the previous cases in this court, that, where the tax was 
within the legitimate authority of the Federal Government, it might 
be measured, in part, by the income from property not in itself tax- 
able, and the distinction was undertaken to be pointed out between 
an attempt to tax property beyond the reach of the taxing power 
and to measure a legitimate tax by income derived, in part at least, 
from the use of such property. Flint v. Stone Tracy Company, 
supra, 162, 3, 4 and 5. 

"The right of the State to tax property, although it is used in inter- 
state commerce, is thoroughly well settled. Postal Telegraph Com- 
pany v. Adams, 155 U. S. 688; 1895; Pullman's Palace Car Company 
v. Pennsylvania, 141 U. S. 18; 1891; Ficklen v. Shelby County, 145 
U. S. 1, 22; 1892. The difficulty has been, and is, to distinguish 
between legitimate attempts to exert the taxing power of the State, 
and those laws which, though in the guise of taxation, impose real 
burdens upon interstate commerce as such. ..." Further the 
Court said, quoting from Postal Telegraph Company v. Adams, 155 
U. S. 697: 

"'Doubtless, no State could add to the taxation of property ac- 
cording to the rule of ordinary property taxation, the burden of a 
license or other tax on the privilege of using, constructing, or operat- 
ing an instrumentality of interstate or international commerce or 
for the carrying on of such commerce; but the value of property 
results from the use to which it is put and varies with the profitable- 
ness of that use, and by whatever name the exaction may be called, 
if it amounts to no more than the ordinary tax upon property or a 
just equivalent therefor, ascertained by reference thereto, it is not 
open to attack as inconsistent with the Constitution.' We think 
the tax here in question comes within this principle." The effect 
of these rulings is to confirm the State's power to levy taxes even 
on the local receipts derived from interstate commerce. 

State Taxes on other Interstate Companies. — Can a State tax 
companies engaged in interstate trade, which are not common 
carriers? Here the laxity and diversity of our State corporation 
laws have led to a most dangerous use of the taxing power. So long 
as every State is free to create or charter new corporations, which 
shall have power to engage in any business whatsoever, including 
interstate commerce, it is necessary for every other State to have 
the power to exclude such corporations from its boundaries if it 



CONSTITUTIONAL PROTECTIONS 539 

chooses. Each State must have the right to say whether the 
corporations created by its sister commonwealths shall be admitted 
to transact business within its owr boundaries or not. If New 
Jersey, the mother of corporations, could send out a great host 
of companies under the loose charter laws which until recently 
existed in that State, then it behooved the other States to admit or 
to exclude from their boundaries the New Jersey corporations as 
they pleased, or to attach conditions to the admission of such 
corporations. So we have in American law the curious spectacle 
of one State chartering a corporation to transact business anywhere 
in the world while another State enjoys the power to exclude that 
corporation from its boundaries, and a third authority, the United 
States Government, may determine whether such corporation may 
engage in interstate commerce. The National Government has not 
yet exercised its powers, but unfortunately all the States have done 
so, and have prescribed the conditions upon which " foreign corpo- 
rations" may enter and transact business — foreign corporations 
being those chartered by other States or by foreign countries. 
This doctrine, which is really necessary in order to protect each 
State from the laxity of the others has had serious consequences 
when applied to taxation. It has led to the rule that a State in 
imposing conditions for entrance, upon the foreign corporation, 
may make one of these conditions the payment of a license or 
franchise tax, and may even raise this tax above the amount paid 
by domestic companies. 

In Pembina Mining Company v. Pennsylvania, 125 U. S. 181; 
1888, the Mining Company, a Colorado corporation which was 
engaged in shipping its ores and products in interstate trade, 
wished to open a branch office in Philadelphia. In order to do so it 
was obliged to pay a license tax to the State of Pennsylvania. The 
company protested on the ground that it was an interstate com- 
merce corporation and that Pennsylvania could not interfere with 
such commerce by a license tax. To this the Supreme Court 
responded that while Pennsylvania could not tax the shipment or 
transport of ores from another State, and the mining company 
could therefore remain outside the State and send its products 
into Pennsylvania without being subject to a tax on its interstate 
shipments, yet if the company wished to enter the State and open a 
genera] business office, then the State had control over all foreign 
corporations which wished to transact business within its boundaries 
and could require them to pay a license tax for the privilege oi open- 
ing an office, if it chose. This dangerous doctrine was further ex- 
tended in the Horn Silver Mining Company v. New York, [43 V . S. 
305; 1892. Here the Mining Company was a Utah corporation 

engaged in mining ami interstate traffic, and was required by the 
State o\ New York to pay a tax on its entire capital oi Sio,ooo,ooo, 
the tax amounting to $30,000 in all. The Mining Company protested. 
claiming that it already had paid a tax in the State oi its incorpora- 



540 THE NEW AMERICAN GOVERNMENT 

tion, Utah, and another in Illinois, where much of its property was 
located, and that being an interstate company its operations must 
not be interfered with by a State tax. Again the Supreme Court 
upheld the tax, even though levied upon the entire capital of the 
corporation both within and outside the State of New York, holding 
that since the State had the right to exclude a foreign corporation 
entirely, it must also have the right to determine under what con- 
ditions it would admit such a corporation, and that one of these 
conditions might be the payment of a tax upon its whole capital 
wherever located. The possibilities of this surprising doctrine are 
again shown in an early non-commercial case — The Philadelphia 
Fire Association v. New York, 119 U. S. no; 1886. Here New York 
had sought to secure some reciprocity in interstate corporate re- 
lations by providing that those companies chartered by States which 
allowed New York corporations to enter under favorable circum- 
stances, that is, with light taxation, should be required to pay only 
a light tax when entering the State of New York; whereas those 
corporations which came from other States must pay a heavier tax 
when transacting business in New York. The effect of this law was 
to establish a higher rate of taxation for different companies doing 
exactly the same business within the State of New York. When 
this higher tax was sought to be levied upon the Philadelphia Fire 
Association, a Pennsylvania company, on the ground that Pennsyl- 
vania did not admit New York corporations under favorable circum- 
stances, the Fire Association objected, claiming that New York was 
denying to it the equal protection of the law and was subjecting it 
to a heavier tax than was paid by other corporations. But the doc- 
trine above described was applied and the State tax was declared 
constitutional by the Supreme Court on the ground that the State 
had the right to fix what conditions it chose when admitting a foreign 
corporation to transact business within its territory. 

Practical Difference Between Common Carriers or Transmitting 
Companies, and Other Concerns. — From this brief survey we ob- 
serve that the constitutional rule of State taxation on interstate 
business is now based on the following general principles: 

(a) No State taxation of interstate commerce as stick is 
valid: 

(b) Practically all the property of interstate carriers, which is 
located within the State or may properly be assigned as the State's 
share of the total value, may be taxed; 

(c) A common carrier or a concern whose business is the very 
transmission of interstate commerce itself, such as a railway or tele- 
graph company, may enter a State without its consent, open an 
office and transact its interstate affairs without securing the permis- 
sion of the State or paying any license fee for the privilege, because 
its right to engage in national trade does not come from the State 
but from Congress; 

(d) But such interstate carriers may be required by the State 



CONSTITUTIONAL PROTECTIONS 54 1 

to pay a license fee for the privilege of conducting local intrastate 
business within its borders; 

(e) Other companies which are not carriers or transmitters but 
are only engaged in interstate trade as an incident to manufacturing 
or producing, may ship their goods in from outside the State without 
its permission and without paying a license fee; 

(f) But such companies before opening an office for the transaction 
of general business may be required to pay a tax not only on their 
business within the State but upon their entire property wherever 
located and upon their entire capital stock; 

(g) And such license tax may be unequal and discriminatory, as 
between different classes of corporations according to their origin, 
varying according to the wish of the State. 

The important difference mentioned in (c) above, between State 
taxes on common carriers whose business is the transmission of in- 
terstate commerce itself and taxes on companies engaged in manu- 
facturing, mining, etc., and whose interstate trade is therefore only 
incidental, may readily be seen by contrasting the Western Union v. 
Kansas, 216 U. S. i; 1909, already described, with the Baltic Mining 
Co. v. Massachusetts, 231 U. S. 68; 1913, and the S. S. White Dental 
Co. v. Massachusetts, 231 U. S. 15; 1913. In these latter cases 
Massachusetts had imposed a tax on all foreign corporations except 
common carriers and those engaged in interstate commerce as a 
business. The tax was a license fee for the privilege of transacting 
business within the State and was one-fiftieth of one per cent of the 
total authorized capital stock; it was also provided that the maximum 
yearly tax should not exceed $2,000 in any case. The Baltic Mining 
Co. was a Michigan mining corporation with its principal office in 
Boston. Its capital stock was $2,500,000, but its total property 
and assets were $10,700,000. It sold the out-put of its mines to the 
United Metal Selling Co., a separate organization which distributed 
its products in interstate commerce. The Baltic Company trans- 
acted chiefly financial business in Massachusetts. 

The White Dental Co. was a Pennsylvania corporation with 
capital stock of $1,000,000 and assets of $5,700,000. Its Boston 
office sold in both intra and interstate commerce. The tax on the 
Baltic Co. amounted to $500; that on the White Co. to $200. In 
both cases the Supreme Court upheld the tax on the ground that 
it was a lawful exercise of the Suite's power to admit or exclude out- 
side corporations to its territory. "The right of a State to exclude a 
foreign corporation from its borders, so long as DO principle of the 
Federal Constitution is violated in such exclusion, has been re- 
peatedly recognized in the decisions of this court, and the right to 
prescribe conditions upon which a corporation of that character 
may continue to do business in the Stale, unless some contract ri^ht 
in favor of the corporation prevents, or some constitutional right is 
denied in the exclusion of such corporation, is but the correlative 
of the power to exclude." 



542 THE NEW AMERICAN GOVERNMENT 

By a recent amendment the Massachusetts tax has been raised, as 
might be expected; if a State can constitutionally tax property and 
business outside its borders why not derive an ever larger share of 
revenue from this source? 

The New Problem; Protection of National Trade. — We need a 
complete revision of our tax laws which shall free all forms of national 
commerce and trade from State taxation. On this point a hasty 
glance over the series of decisions just considered, is convincing. 
If the spirit of the Constitution, Section 8, Article I, is to be carried 
out and Congress is to have power "to regulate commerce among the 
States" there can be no compromise between the National Govern- 
ment and the commonwealths on the question of State taxation of 
national trade. There can be no dodging of the fact that every 
State tax on such trade, under no matter what form the levy is dis- 
guised, is an interference with the Federal power or with the trade 
which that power designs shall be free of regulation. To say that 
a State tax on this trade when levied on the interstate receipts of a 
corporation is not a tax on the receipts but is only "measured by" 
those receipts, is a subterfuge. The revision of our tax laws should 
be so complete that no State levies on any form of interstate business 
would be allowed. 1 With this there should go a complete Federal 
control of national corporations and Federal taxation of the same. If 
it should be found, as is probable, that this policy would deprive the 
States of a share of their present revenues, it would be a simple 
matter for the National Government to divide the proceeds of its 
tax between itself and the State government on an equitable basis. 
A constitutional amendment may be needed to reach this end. A 
Federal Incorporation Act, a law providing for the national licensing 
of companies engaged in interstate commerce and a suitable national 
tax upon them, together with an Act exempting them from State 
interference by taxation or otherwise, are all needed to prevent 
State taxes on the operations of national trade. Most of the inter- 
ference with such commerce has been tolerated by the Supreme 
Court on the ground that Congress had complete control of national 
commerce but had not acted nor used its regulative power, and 
that until it did so the States might regulate. In taxation a slightly 
different principle has been applied which possibly rests upon the 
same broad ground; viz., that Congress may at any time free national 
trade from all interference. The passage of such a measure by Con- 
gress would remove a heavy and harassing burden from national 
business. There is every reason of both a business and a constitu- 
tional nature why the concurrent authority of the States with Con- 
gress and the conflicting authority of the States with each other 
should now be ended. 

1 From the viewpoint of the commonwealths a revision is also sorely needed in 
order to prevent the wholesale evasion of personal property taxes on the plea of 
non-residence. See the Chapter on State Finances. Some form of co-operation 
between the States themselves and between the National Government and the 
States is now essential. 



CONSTITUTIONAL PROTECTIONS 543 

Most of the decisions which we have just examined, also show the 
serious dangers of double taxation. In the Horn Silver Mining 
case a Utah corporation which had paid a tax before, on its capital 
stock, for the privilege of incorporating, was also obliged to pay a 
second tax on its property in Illinois where the property was located; 
a third tax on its total capital stock to the State of New York, 
where it wished to open an office; and, under the present conditions, 
it would be obliged to pay a further tax to the Federal Government 
on its net income in excess of $5,000. This means quadruple 
taxation, and, in case it entered into any other State to transact 
business, that State could require as a condition of entrance the 
payment of further taxes on its business or on its total capital. 
This is one of the strong reasons urged against any national laws 
restricting holding companies. It is necessary for a large concern 
which wishes to transact business in several States to incorporate 
subsidiary companies separately in each State, unless it is willing 
to pay a heavy tax on total capital to each commonwealth for the 
privilege of entrance. Since a national company of $10,000,000 
capital may be taxed on this amount in each State where it operates, 
it usually establishes a series of small local companies and owns the 
stock of these local concerns. If holding companies of this kind 
are discouraged by law, the national company operating in several 
commonwealths must be freed from their unjust taxation on prop- 
erty outside their limits. 

A Federal Appraisal and Collection. — If a constitutional amend- 
ment should be found necessary to remedy the difficulty, a further 
reorganization of our tax system would seem advisable, in the form 
of a Federal appraisal of all taxable property and the collection 
by Federal officers of all taxes. This plan would end the great 
variety of appraisals and assessments upon the same kind of prop- 
erty in different States and within the same State. Farm land is 
now assessed at from 40% to 100% of its real value, according to 
the State or county in which it is located. The laxity of public 
officials is condoned by public opinion. But such a method offers 
tempting opportunities for favoritism or discrimination based on 
partisan politics or personal friendship. The burdens of taxation 
should not be subject to such inequalities. A Federal value would 
be uniform and would prevent the evasion of taxes which is now 
common in all the States where personal property levies exist. 
For years it has been customary for many wealthy New Yorkers 
to evade all personal property taxes of their State by declaring 
that they are residents o( Newport, Rhode Island, where the 
personalty tax is light. In this way a great share of the property 

which should really be taxed in New York escapes entirely. In- 
stances are not wanting in which property owners have "sworn off" 
their taxes, in every state where levied, on the ground that they 

Were not residents oi that particular commonwealth. A Federal 

assessment would effectively stop such a procedure. The collection 



544 THE NEW AMERICAN GOVERNMENT 

of all taxes by national officers, to be paid over to the local, State 
and national treasuries would also prevent many evasions and 
inefficient collections which now rob the public treasury of heavy 
sums annually. 1 

Equal Protection of the Tax Laws. — Can a State tax one in- 
dividual higher than another, or one piece of property higher than 
a smaller piece? The 14th Amendment provides that no State 
shall deprive any person within its jurisdiction of the equal pro- 
tection of its laws. Discriminatory taxation, in so far as it violates 
this amendment, is, therefore, unconstitutional. What is discrimi- 
nation? In Magoun v. Illinois Trust Company, 170 U. S. 283 ; 1898, 
the Supreme Court had before it this question: Is a progressive 
inheritance tax, laid by the State, a violation of the " equal pro- 
tection" clause? The Illinois legislature had levied a tax upon the 
estates of decedents, on what is called the "progressive" scale — 
that is, higher percentages for larger estates — and the heir in ques- 
tion objected to the payment of such a tax, claiming that the 
heirs to the larger estates were denied the equal protection of the 
law, in that they were differently taxed from the heirs of the smaller, 
and that the 14th Amendment being thereby violated, the law was 
unconstitutional. The Supreme Court decided that discrimination 
meant the unequal, partial treatment of individuals, but that on 
the other hand the legislature might constitutionally classify in- 
dividuals or businesses or inheritances or estates, and levy a differ- 
ent tax upon each class so long as it treated equally all individuals 
within a single class. If all estates within a given class were taxed 
the same per cent they were given the equal protection of the law. 
If all businesses of the same class were charged the same percentage, 
equal protection of the law was preserved; the equal protection 
clause was only violated in case one individual or corporation within 
a class were taxed at a rate higher or lower than others of the same 
class. The Constitution did not aim to prevent a classification of 
businesses, of persons or estates based on natural reasonable dis- 
tinctions, especially where such distinctions involved a difference 
in the ability to bear the burden of taxation. Accordingly the 
Illinois law was held to be constitutional, and the same rule has been 
applied to other inheritance taxes levied by the States. Such an 
interpretation of the clause is reasonable and in no way interferes 
with business. But we have already seen that in Philadelphia 
Fire Association v. New York, 119 U. S. no; 1886, the State of 
New York was allowed, under its general control over foreign 
corporations to lay a heavy and discriminatory burden upon such 
companies, whereas domestic corporations chartered by New York 
itself were not subjected to this tax. This is a real violation of the 
spirit of the equal protection clause, yet it has been upheld by 

1 The startling amounts of wealth which escape State levies by the means 
above described may be surmised from the disclosures made at the 191 2 Con- 
ference of Governors. See Proceedings, page 81 ff. 



CONSTITUTIONAL PROTECTIONS 545 

the Supreme Court in the case mentioned, and in a host of other 
decisions. The effect has been to deprive the clause of all value 
for the taxpayer. 

REFERENCES 

Barnes and Milner : Selected Cases on Constitutional Law. 
Cooley: Constitutional Limitations on the Powers of the States. 
Hall: Constitutional Law. 
Judson : The Law of Taxation. 
W. W. Willoughby: U. S. Constitutional Law. 

Readjustments in Taxation, Annals of the American Academy of Pol. & Soc. 
Science, March, 191 5. 
F. A. Walker, Article on "Taxation," The Annals, March, 1902. 

QUESTIONS 

1. Summarize the chief constitutional clauses which safeguard us from 
illegal taxation. 

2. What is a tax? 

3. The State tax collector of New York attempts to levy on the battleships 
at the Brooklyn navy yard under the personal property tax of that State. 
Constitutional? Reasons. 

4. Could New York tax the United States bonds owned by its residents? 
Cite reasons and authority. 

5. The authorities of a new town which is on the boom promise all manu- 
facturers locating within its boundaries in the first year, a bonus of $1,000 each. 
Constitutional? Reasons and precedent. 

6. They levy a tax for the purpose of erecting a municipal electric light 
plant. Constitutional? 

7. The Illinois tax authorities proceed to collect levies upon the bonds of 
other States held by residents of Illinois. The bondholders object under the 
"full faith and credit clause" of Article 4. Explain this clause and decide the 
case^vith reasons. 

rS. The State of X issues bonds bearing interest at 5%. Five years later 
it levies an income tax to be collected at the source and instructs its State 
treasurer in paying the interest on its bonds to deduct the income tax from the 
payments to bondholders. The bondholders resident in other States protest. 
Decide the case with reasons in full and authority. 

9. California levies a tax of 1% on all personal property held by her res- 
idents within the State. The collector assesses the national bank stock and 
national banknotes owned by John Uoe. Doe protests, citing McCulloch v. 
Maryland. Explain in full Doe's argument and the Court's decision with 
reasons. 

10. The New York legislature wishing to discourage the excessive sale of 
foreign hats in the State requires hat importers to pay a license tee of $50 
annually. The importers object to payment of the license. Decision, reasons 
and precedent. 

11. Richard Roe is a travelling salesman for a Chicago house, he is required 
to pay a license fee in Kansas, but protests. Decision, reasons and precedent. 

12. He solicits orders in Kansas for his Chicago house; the latter ships the 
goods io him and he delivers them to his customers. Kansas taxes the goods 
after thev have reached him from Chicago. He protests. Decision, reasons in 
full. 

13. Silas Wayback starts from BytOWTJ Center, \. J., with a wagonload of 
tomatoes. He crosses to New York and sells them by the bushel direct to house- 
holders in that city. Can he be required to take out a peddler's license, and 
pay 50c for it? 

14. John Doeheimer solicits orders for framed pictures. He receives the 



546 



THE NEW AMERICAN GOVERNMENT 



frames and pictures separately from his firm in another State, places them 
together and delivers them. Can he be required to take out a local salesman's 
license? 

15. Richard Roe takes orders for windmills which he receivers from another 
State. His contract with the purchaser includes the putting up of the wind- 
mills and connecting them with water tanks. Can the State require him to take 
out a license for erecting these devices? 

16. Mr. Lamb, an investor of Crossroads, Iowa, wires to his Chicago brokers, 
Fleece & Company: "Buy for my account 100 shares Steel common on 10% 
margin." If Illinois levied a brokers' license tax of 1/100 of 1% of the total 
annual sales, must Fleece & Company include Mr. Lamb's order in their total? 
Why? Cite a precedent and explain. 

17. Missouri requires auctioneers to pay %% of their total sales as a license 
fee to the State. John Doeburger is an auctioneer who during the past year has 
auctioned only goods shipped from Chicago. Must he pay the tax? Decision, 
precedent and reasons. 

18. In Chicago you order from Detroit two automobiles and upon their 
arrival, while they are still in the Chicago freight depot you place a sign on them 
"for sale." Can they be taxed by the State? Reasons and precedent. 

19. If they are not marked for sale but are delivered in the original package 
to the warehouse of your Chicago store, could they be taxed by the State of 
Illinois? 

20. An automobile manufacturer in Detroit sends 100 cars to the Independ- 
ent Sales Company in Philadelphia, and, as the manufacturer finds purchasers 
in Philadelphia, Baltimore and Washington he directs the Sales Company to 
ship the cars to the buyers. Can Pennsylvania levy a merchants' tax upon the 
manufacturer, — the tax to be measured by the cars stored in Philadelphia? 
Decision, reasons and precedent. 

21. Tennessee levies a tax on manufactured goods exempting those made 
from the products of her own soil. Constitutional? Explain fully with prece- 
dent. 

22. Can a State tax the franchise of an interstate company granted by 
Congress? 

A State imposes a license tax of $100 yearly upon all carriers including railway 
companies, express companies, telegraph companies operating at any point 
in the State. Must the interstate companies pay this license fee? Explain 
fully with precedent. 

23. A State taxes the real estate and roadbed of an interstate railway so 
far as the property mentioned lies within the State. The railway objects claim- 
ing that it carries the United States mails, and is engaged in national trade. 
Decide with reasons. 

24. Could a State under any circumstances or by any method tax the rolling 
stock of an interstate line which passes through its boundary? Decide with 
reasons and precedent. 

25. What is the unit rule of State taxation on interstate carriers? 

26. Present an argument for an interstate carrier against the constitutionality 
of the unit rule and show what the Court would dec'de and why. 

27. An express company which is taxed under the unit rule protests on the 
ground that the personal and real property of the company within the State 
is very slight in value and that in fixing the total value the State authorities 
have appraised its business located in all parts of the country and not its prop- 
erty located in the State. Decide with reasons and precedent. 

28. The State of X levies two taxes upon all railways within its borders, — 
a general real estate and property tax and a tax upon the gross receipts taken 
in at all points within the State from all sources. Must this latter tax be paid 
by interstate lines? Reasons and precedent. 

29. Could a State levy a tax of 1% on total capital stock of all railway 
companies chartered outside the State, as a license fee for transacting local 
business within the State? Reasons and precedent. 

30. Could the State of X levy a tax of 1 % on gross receipts taken in at all 



CONSTITUTIONAL PROVISIONS 547 

points within the State from all sources, making this a levy in lieu of all other 
forms of taxation on carriers? Reasons. 

31. Prepare a short essay showing the difference between State taxation on 
gross receipts from interstate commerce as such and a tax on gross receipts as a 
measure of the value of the carriers' property within the State. 
* / 32. Explain the difference between the constitutional status of State taxes 
on interstate common carriers and on ordinary interstate concerns. 

33. Explain why a State has the right to tax an interstate company which is 
not a common carrier. 

34. The Standard Typewriter Company has a factory in Chicago and opens 
a branch office in Kansas City, Mo., where it sells a large number of machines at 
retail. Must it take out a license in order to open its Kansas City sales room, if 
the Missouri law so requires? 

35. The New Jersey Sand Company which produces and ships in interstate 
business large quantities of bar sand, is taxed in New Jersey on its capital stock 
and its property. Upon opening an office in Pennsylvania for the receipt and 
distribution of business and the sale of its stock to Pennsylvania investors, it is 
required as a license condition to pay a tax to Pennsylvania of 1% of its total 
capital stock. A similar condition is imposed upon it in Chicago and New York, 
where it sells sand and stock. What would be its defense and what would the 
Court decide? 

36. Could the Sand Company also be required to pay a corporation tax to the 
United States measured upon its net income, if it had any left? 

37. Would the Sand Company have to pay a Pennsylvania State license tax 
if it took orders only by mail and shipped its sand from New Jersey to Philadel- 
phia without opening a Philadelphia office? Reasons. 

38. Contrast the two taxes following and explain whether they are con- 
stitutional and why: 

(a) A tax of 1%, levied by a State upon the total capital stock of a 
common carrier engaged in interstate trade, the tax to be paid as a 
condition of carrying on local traffic within the State. 

(b) A tax of 1%, by the State of X, on the total capital stock of 
a mining company chartered in another State, and having most of its 
property located in another State, the tax to be paid as a condition 

/ of transacting local business within the State of X. 

•^9. Can New York State require outside insurance companies to pay a 
higher fee before opening an office within the State, than it requires its own 
insurance corporations to pay for the privilege of a charter? Reasons and 
precedent. 

»^o. Can it charge less on corporations coming from States which tax New 
York companies lightly than it does on those coming from States which tax 
New York companies heavily? 

4r. Minnesota decides to levy a tax oil grain within the State. The owner of 
a shipment of wheat from North Dakota to \e\v York temporarily withdraws 
the wheat from the railway at a point in Minnesota, and places it in his own 
elevator there while deciding whether to sell it or to ship it on east, as he has the 
privilege of doing under his agreement with the railway company. Can the 
Minnesota tax be levied on his wheat? Reasons and precedent. 

42. Could a State tax all persons named Smith higher than those named 
Brown? Give reasons and cite clause of the Constitution. 

43. Explain and illustrate when an interstate corporation is, or is not en- 
gaged in business within a State in such a way as to make it subject to the 
State regulative laws. 

44. Owing to your success as typewriter sales agent for the State o\ P. the 

company also offers you the agency for the neighboring State oi Q, The O. 

s< ic taxes on foreign corporations for the privilege oi transacting business in 

the State arc- so high and the margin of sales profits so low that you seek to 
avoid this extra burden of State taxation in O. Outline a | dan. 

I V Can a Slate constitutionally tax large inheritances at a higher rate than 

email inheritances.' Explain. 



548 THE NEW AMERICAN GOVERNMENT 

46. Can it tax manufacturing corporations in one county at a higher rate 
per cent than in another county? Reasons. 

47. Can a State bar out from its boundaries all foreign corporations which 
wish to transact local business within its limits? 

48. Resolved that the Federal Government should make all assessments of 
property for taxation and should collect all taxes, paying each State's share to 
the State Treasurer. Defend either side of this question. 

49. Resolved that Congress by additional legislation should protect not 
only common carriers, but other interstate companies from interference by 
State taxation. Defend either side of this question. 



CHAPTER XXVI 
THE PARTY 

Party Usefulness. — All representative governments the world 
over are run by political parties. Many devices have been tried, 
to avoid or ignore the party, many proposals made to change, 
reorganize or destroy it but in one form or another, better or worse 
it continues because it is the only known means of expressing 
political opinion. In its simplest form it is the co-operation of voters 
to elect their candidates or to urge their political principles upon the 
government. From this elementary state it often grows until it 
becomes a close, compact organization of voters, business interests, 
racial groups and social, and unfortunately sometimes even religious 
bodies. These are all cemented together by the party leaders and 
organizers through the use of every known means of stirring up 
the patriotism, the devotion, the fear, the greed, the hatred and the 
prejudice of their members. No human emotion or quality is left 
untouched in the effort to attract and hold the party man. But in 
this growth, artificially aided and stimulated as we have seen, the 
party often ceases to be what it was originally intended, a means 
of expressing political opinion, and falls under the domination of 
a group, an interest or a clique which seizes control of the party 
machinery and organization and uses it for selfish purposes. This 
parasitic tendency is everywhere visible in political struggles. It 
has produced that curious but very interesting conflict between 
the organization of the party, its machinery, its committees, 
its conventions and sometimes its leaders on the one hand and the 
vital force and life of the party, its real representation of the people 
on the other. Every human organization tends to form a crust 
of form, ceremonial procedure and tradition which binds it and 
hampers it from adapting itself readily to new conditions or even 
carrying out its original purpose. This has usually been the fate ol 
party organizations, — they have become so rigid, so self-centered, 
and so exclusively controlled by a compact minority of the member- 
ship that they seek to become the master not the servant oi the 
people. Once a party reaches this stage nothing but the chastening 
influence of defeat at the polls will bring it back to its true repre- 
sentative role. We shall accordingly consider first, the organiza- 
tion and second, the work o\ the party. 

The National Committee. -Each party nominates its Presiden- 
tial candidate in a great national convention held in June or Julv 

of the election year, in all political gatherings and conventions, 
where hostile factions are Struggling for supremacy, the control 

549 



550 THE NEW AMERICAN GOVERNMENT 

of the preliminary arrangements is all-important, — the naming 
of the delegates, the decision of contests for seats, the temporary 
presiding officers and the committees, all influence directly the 
chances of each candidate for the nomination. The seasoned 
politicians who act as managers for each candidate and his "boom," 
concentrate their efforts upon getting control of this preliminary 
machinery, and the most important part of the mechanism is the 
national committee. This body carries on its work quietly behind 
the scenes but none the less effectively. It, rather than the conven- 
tion, is the real head and center of the party, organizing, financing, 
and managing the presidental campaign. It is made up of one 
member from each State and territory, chosen by the delegates 
of the State in the national convention. This illustrates admirably 
how we often preserve the form of representative democracy while 
in substance we are establishing a thoroughgoing absolutism or 
oligarchy. In form the body is only an obedient committee of 
the national convention, — in substance it controls the convention. 
So sweeping are its powers that rival candidates within the party 
always do their utmost to gain its support, for usually he who 
controls the committee, rules the convention. 

i. The committee decides the time and place of holding the con- 
vention. Much depends on this. The marching throngs, the 
oratory and the enthusiasm of convention time will do much to 
strengthen the wavering party allegiance of a large city. The 
minority party usually decides to hold its convention after the 
majority's in order to take advantage of any mistake and to draft 
a stronger platform. 

2. The committee makes the first decision on all contests for 
delegates' seats in the convention. In every Presidential nomina- 
tion there are many of these contests in which two factions of the 
party will send rival delegates to the convention, each claiming 
seats and the right to vote. Where the struggle for the nomination 
is close two factions will often send a host of contesting claimants 
for seats on the theory that they have nothing to lose and much to 
gain. A preliminary roll of the convention must be made by some 
authority of the party and this work falls to the national committee. 
The roll is subject to revision as is also the decision on contested 
seats, — a committee on credentials is later chosen which goes over 
every contest and makes a report with recommendations to the 
convention. But this body seldom makes any radical changes in 
the report of the national committee itself, so that a victory in the 
preliminary decisions by the national committee is of the utmost 
importance. Clearly then, this gives to the committee the power 
to seat enough delegates provisionally, from one side or the other, 
to influence the vote of the convention. As a rule, partiality is 
shown but seldom enough to decide the nomination. An exception 
occurred in 19 12, when there were 234 contests in the Republican 
convention, because of factional differences. The national com- 






THE PARTY 55 1 

mittee worked overtime for a week on these contests and the de- 
cision so made had an important bearing on the choice of a candi- 
date and widened the breach in party ranks, which afterward 
caused defeat at the election. The convention machinery thus 
falling into the hands of the conservative element of the party, 
the liberals were defeated on every proposal which they advanced 
in the convention. They remained in the body until the end, 
however, and then called a seceding convention and formed the 
Progressive party, carrying with them the bulk of the Republican 
vote in the election of that year. 

3. The Committee chooses the temporary chairman of the con- 
vention who opens the proceedings, presides until the permanent 
chairman is elected, and makes a lengthy address which is usually 
called the " keynote speech" of the party's campaign, because 
it is supposed to reflect the mature sober thought of the party 
leaders upon the chief issues of the election. It is during the pre- 
liminary manoeuvres and the " jockeying for position" at the 
beginning of the race that both sides try their hardest to score an 
advantage. Motions are made to appoint special or temporary 
committees, points of order are raised and supposedly subtle 
devices are planned by the skilled parliamentary strategists of 
each faction to gain an advantage over the others. Since the 
temporary chairman must rule on these, his choice is always made 
with greatest care by the controlling group in the national commit- 
tee, in order to preserve the rules of fair play and above all to main- 
tain the supremacy of the dominant element. 

4. The committee watches over political conditions in all the 
States during the intervening 3 years when there is no Presidential 
election; it also acts as an executive body to conduct all important 
party affairs during the interval. The convention being a turbulent 
unwieldy meeting cannot carry on the continuous administration 
of the party affairs. We are apt to underestimate the scope of 
this activity, which must be carried on year in and year out by the 
organization. 

Parties do not win great victories by a single burst oi enthusiasm 
nor by a short campaign immediately before the election but rather 
by slow persistent and stead)' work in season and out of season and 
by the perfection of a system which brings the party workers into 
close personal touch with every voter. Such a system is not oi 
mushroom growth; it must be developed with the same patience, 
energy, skill and persistence that are needed to build up any busi- 
ness machine. This is the work of the national committee. We 
hear of it only amid the excitement oi a Presidential campaign, 
but its members are constantly in touch with the political condi- 
tions oi every State and it is their business to know the effect of 
party policies on the political opinion oi the country. The members 
oi the Committee are business men, lawyers, and political leaders of 
unusual administrative ability. The chairman oi the committee 



552 THE NEW AMERICAN GOVERNMENT 

must especially possess executive ' force and talent. When the 
campaign opens he establishes national headquarters in some large 
city, usually Chicago or New York and from this center keeps in 
touch with all parts of the country and especially with the leaders 
in each State. 

5. His first work is to raise funds for the campaign; this is done 
both by letter and personal solicitation. In the campaign of 1908 
a public statement of the principal contributors was made by both 
sides for the first time. This set a precedent which ought to be 
followed in every campaign, for that of 1908 was exceptional. 
The corporations of the country were prohibited by law from con- 
tributing to the campaign, and for this reason the expenditures 
from the national headquarters were probably less than in any 
recent Presidential election. 

When a great economic problem is at issue, such as the currency, 
corporate regulation, or tariff, large sums are freely contributed 
by the business interests affected and for this reason a prominent 
business man of marked executive ability or a promoter is usually 
chosen, either as chairman or treasurer of the committee. He 
appeals directly to the "pocketbook nerve" of the manufacturing, 
banking, or other interest on the conservative side, or he originates 
a system of small contributions if the party be a liberal or a radical 
one. Owing to the strong public opinion against corporate inter- 
ference in political affairs it seems likely that we are approaching 
an era in which party funds will be collected chiefly from small 
contributors. The newer parties have already established a plan 
of this kind, the most effective, in proportion to the wealth of its 
members, being that of the socialist party. In this organization 
a small fee is asked of every member as an ordinary duty of mem- 
bership. The progressive party attempted to establish a similar 
method, but with less success. In the State campaigns a large 
proportion of the funds is secured from office holders. 

6. The national chairman through a Speaker's Bureau controls 
the orators and distributes funds in the various sections of the 
country. It is also his duty to co-operate with the congressional 
committee which is composed of either a Senator or Representative 
from each State or territory in which the party is represented in 
Congress. The work of this committee is to conduct party cam- 
paigns in congressional elections and to co-operate in presidential 
years with the national committee of the party. It does this by 
selecting those States which are considered doubtful and sends them 
funds and speakers for the party organization. In some presiden- 
tial elections it even builds up its own party machinery in the doubt- 
ful States, reaching down into the counties and even villages when 
necessary. 

7. The national committee prepares a campaign text-book for 
speakers and public workers in the presidential election. This 
text-book contains the platform of the party, the speeches of its 






THE PARTY 553 

candidates and a large amount of statistics and information showing 
that the party in the past has stood for popular issues while its 
opponent has been guilty of grave mistakes. 

8. The national committee is authorized to fill vacancies in the 
ticket in case of death or resignation of any candidate provided 
there is not sufficient time to reconvene the Convention. 

The Convention. — The call for the convention having been issued 
by the national committee, delegates are selected by the party in 
each State, the number being equal to twice the number of congress- 
men and senators to which the State is entitled. The Democrats 
choose their delegates at large in the State; the Republicans select 
their delegates, two from each congressional district, in primaries, 
or by a district convention, and four, representing the Senators 
at large, by a primary or a State convention. The territories are 
each allowed two delegates by the Republican party and six by the 
Democrats. Hitherto neither party has shared its delegates among 
the States according to number of party members. A Democratic 
State has had as many delegates in a Republican convention as 
if it had voted solidly for the Republican ticket, and vice versa. 
This system of apportionment has worked serious harm in all the 
recent conventions of both parties. In the Republican conven- 
tion the balance of power, varying from one-fifth to one-third, 
was held by delegates from the South and South-west where there 
ire no Republican voters. To "corral" these delegates was the 
first effort of a prospective candidate, and the delegates from this 
section were "seen" and "conferred with" long before the con- 
vention opened. 

In 1908, delegate Burke of Pennsylvania offered a resolution to 
correct this inequality in apportionment. It provided that in 
future conventions each State should be entitled to four delegates 
ind to one additional delegate for every 10,000 Republican votes 
:ast at the preceding presidential election. The resolution was 
reported unfavorably by the committee on rules with a strong 
minority report in its favor. The proposed change would have 
reduced the representation of the Southern States and increased 
that of the Republican commonwealths. Alabama, for instance, 
would have six votes instead of 22, Georgia 6 instead of 26, Missis- 
sippi 4 instead of 20, South Carolina 4 instead of 18, Texas in- 
stead of 36. On the other hand, the Northern States would increase 
in representation — New York from 78 to 00, Illinois from 54 to 
$7, Michigan from 28 to 40 and Pennsylvania from 68 to 88, In 
pointing out the injustice of the present method, Mr. Burke said: 

"What is your opinion oi a ruling that allows South Carolina 
to cast 1 vote (in the convention) for every [36 Republican votes 

while it gives to Colorado 1 vote for every [3,000 votes cast at the 
general election. A ruling . . . that gives to Mississippi i vote 

for every 150 votes that she casts . . . and to Pennsylvania, 

Indiana and Illinois . . . 1 vote for every 11.000 votes that they 



554 THE NEW AMERICAN GOVERNMENT 

cast? If Pennsylvania were given the same representation in this 
Convention to-day as South Carolina we would have 650 delegates 
on this floor. Ohio (if treated the same) would have 540 delegates 
in this convention." 

The final vote on this proposed change was 471 in favor of the 
Burke plan and 506 opposed. The Southern States were, of course, 
a unit against it, and scattering votes from the North went also to 
that side. This close vote clearly indicated a trend of opinion 
in the party in favor of some change which would eliminate the pres- 
ent inequality. In 19 13 a special meeting of the Republican com- 
mittee was called to consider the cutting down of Southern repre- 
sentation in the convention and it was agreed to refer the matter 
to the various State organizations. During the year that followed 
a majority of the party authorities adopted the plan for a represen- 
tation of each State based on the Republican vote of the State, 
and the Chairman of the National Committee thereupon, on 
October 25, 19 14, declared the new plan in effect in the choice of 
future Republican conventions. It will have the effect of reducing 
the total number of delegates by 89, most of which reduction occurs 
in the Southern representation. The change was approved by 
the party authorities in several Southern States. 

Presidential Primary. — For the election of 191 2 ten States 
adopted the presidential preference primary in response to a general 
demand for greater fairness and freedom in choosing delegates to 
the national conventions. That this is not a local or sectional feeling 
is shown by the wide distribution of the States adopting the new 
system. California and Oregon on the Pacific Coast, Massachusetts 
and New Jersey on the Atlantic Coast, while other commonwealths 
of such varying local conditions as Michigan, Montana, Maryland, 
and South Dakota also subscribe to the plan. The New Jersey law 
is a general type of this legislation; it provides that delegates to the 
national convention of all parties shall be chosen directly by the 
party voters and may be pledged to support a given candidate. 
Further, the voters may state their choice of candidates on the 
ballot and names are placed on the ballot by petition requiring 1,000 
signatures. The delegates to the convention are chosen by congres- 
sional districts with the usual provision for an election at large for 
the delegates at large. Some confusion arose from the first applica- 
tion of this system and from the action of the Republican national 
convention in refusing to respect the State laws on the subject, 
particularly in California. It happened in some of the States that 
the majority of the voters expressed a preference for certain candi- 
dates and for certain delegates who were not favorable to these 
candidates. The present Presidential primary system, which is 
in the main fair and correct in principle, needs revision as is shown 
by the following admitted defects: 1 

(a) The national convention may refuse to be bound by State laws. 
1 See the American Year Book, 191 2. 



I 



THE PARTY 555 

(b) A uniform nominating process throughout the country is 
necessary. 

(c) In order to avoid the confusion of State and national issues 
the enrollment in a national party should be controlled by Federal 
law. 

(d) Instead of a series of delegate conventions it would seem wiser 
to establish a national direct primary allowing the two candidates 
with the greatest number of States and districts in their favor to be 
the nominees at the general election. 

Work of the Convention. — The convention serves many purposes: 

It brings together the national leaders and workers of the whole 
party and stimulates them to renewed effort. 

It makes the choice of the party's candidates although, as we have 
just seen it is not the best means of doing so. 

It drafts the party platform for the election. 

It chooses the party authorities, especially the national committee, 
for the following four years. 

It stirs up partisan enthusiasm and revives the flagging interest 
of the public. The convention represents the sentiments, feelings, 
the patriotism and the eloquence of the party. There is a renewal 
of old traditions and, above all, an enthusiastic belief that the party 
represents some great popular cause. In this way the convention 
unites the contending factions, harmonizes discords, electrifies into 
new life the party workers and sends every man home with an in- 
vincible determination to do or die "for the ticket." The balance 
of power in every convention of the majority party is controlled 
by office-holders and in both majority and minority conventions the 
senators and congressmen play an important role. The proceedings 
of the body usually follow the same general course. The order of 
business in the 191 2 conventions was: 

1. The preliminary decision of the national committee on the 
contested seats. 

2. The calling to order of the convention itself by the chairman of 
the national committee. 

3. The election of a temporary chairman who is decided upon in 
advance by the leaders in the national committee and accepted by 
the convention. He delivers a length)' speech which as we have seen 
is the "keynote" utterance of the campaign, from the viewpoint 
of the national committee, 

4. The roll of the convention is called by States, each State nomi- 
nating one oi its delegates for each oi the following committees: 
credentials, permanent organizations, rules, resolutions. The com- 
mittee on credentials is to decide officially the contests for seats in 
the convention, that on permanent organization nominates a set oi 

permanent officials, that on rules proposes a set oi rules for the parlia- 
mentary procedure oi the convention; these are usually the rules 
of the House at Washington. The committee on resolutions drafts 
the party platform. 



556 THE NEW AMERICAN GOVERNMENT 

5. While these various bodies 'are preparing their reports the 
stream of oratory in the convention is let loose and allowed, in fact 
compelled, to flow uninterruptedly so that the convention soon warms 
up to the required fervor of enthusiasm. During this period the 
friends of each candidate are on the alert to take advantage of every 
opportunity which may show the supposed popular enthusiasm for 
their hero. Tons of buttons are prepared bearing the pictures of 
their candidates and are distributed freely to every one in or near 
the hall. Fans printed with the names of candidates are likewise 
circulated freely. At the slightest mention of a candidate's name 
in any speech, the most studied and systematic efforts are made by 
his friends to set up and maintain a prolonged applause. Parades 
about the convention hall are organized with brass bands hired for 
the occasion; spectators in the visitors' gallery are coached to make 
a demonstration at the proper moment. The observer finds it hard 
to estimate how much of this by-play is genuine and how much is 
machine-made. If the friends of one aspirant adopt these methods, 
the others must do likewise. This is especially noticeable in the 
cheering, which is organized with greater care than at a college foot 
ball game. It must be remembered that the 1,100 delegates them- 
selves make up a goodly throng, then there are the alternates, all 
of whom are seated in the convention, and, in addition, there are 
10,000 spectators ready and anxious to show their preference for some 
" favorite son" of their State. In the Democratic convention of 
191 2 Mr. Underwood's partisans demonstrated their feelings by 
cheering over 20 minutes for him. Naturally the Clark partisans 
must show their enthusiasm, which they did by applause and up- 
roar for one hour and 5 minutes. This was a challenge to the Wilson 
adherents who organized and kept going their demonstration for 
1 hour and 15 minutes. Mr. Bryan's name was cheered for 1 hour 
and 27 minutes in the convention of 1908. These are no mean feats 
when it is considered that the thermometer often registers well 
over 90 in the shade. 1 

6. The convention having "loosened up" somewhat the committee 
reports are next presented. Permanent organization is effected by 
ratifying the report of that committee and electing the permanent 
officials. The committee on credentials reports as early as possible 
on the contested cases, usually following the lines laid down by the 
national committee. It is at this point that the "steam roller" 
appears amid loud cries of protest from the unseated delegates who 
call on high heaven to witness the injustice done them, and predict 
dire defeat for the party which permits such crimes. 

7. At the end of the second or third day the convention is ready 
for nominations or for the platform. In the Baltimore convention, 

1 The Cleveland Leader humorously says of the spontaneous and manu- 
factured applause at Baltimore — "In the light of such proceedings is it not clear | 
that the superior dignity and the solid mental weight of man justify him in) 
looking down from his lofty height upon the agitation for woman suffrage andj 
gravely refusing to grant the ballot to a sex prone to emotional outburst? " 



THE PARTY 557 

at the urgent insistence of Mr. Bryan, the nomination was made 
first and the platform adopted afterward. This is a wise proceeding 
as the candidate must necessarily have much to say about the prin- 
ciples which he is to represent. The Democratic convention re- 
quires a two- thirds majority for nomination. Mr. Clark had led 
on several ballots and on 8 of them had a clear majority, but the 
two-thirds rule prevented him from gaining the coveted prize. Mr. 
Wilson's vote steadily rose with each ballot until the dramatic 
announcement of Mr. Bryan demanding that the convention pledge 
itself to a candidate who would be in no wise allied with the "big 
business" interests of the country. This startling resolution, which 
was passed, led to a scene of intense excitement and on the next 
ballot so increased the vote for Mr. Wilson, who was the candidate 
of the advanced or liberal faction, that his nomination was a 
foregone conclusion. The candidates are proposed by a roll call 
of the States, the chairman of each delegation having the right to 
place a name before the convention. This right is usually waived 
after the leading candidates have been presented and the roll call 
is then discontinued by common consent. Speeches are made both 
in nominating and seconding each name, and it is here that the gal- 
lery is called on to do its best. In the Republican conventions of 
1904 and 1908 an immense number of tiny flags had been distributed 
throughout the gallery and these were suddenly waved at a given 
signal when Mr. Roosevelt's name was mentioned. The result was 
picturesque and effective. It led to similar manifestations in both 
the conventions that followed. The names having been presented, 
the States vote in alphabetical order. 1 Until 191 2 the Democratic 
party used what was known as the "Unit Rule" by which all the 
votes of a State go to the same candidate. At the Baltimore con- 
vention this rule was broken and seems likely to be abandoned. 
It works much injustice and inaccuracy in expressing the real senti- 
ment for the respective candidates. When it becomes clear that one 
of the candidates will gam the desired majority, all the remaining 
States turn into line and when the vote is announced the represen- 
tatives of other aspirants move that the nomination be made unan- 
imous. With surprising promptness an immense banner portrait 
of the successful nominee is then brought into the hall where it is 
displayed during the remainder of the convention. 

1 Often the contests for disputed seats are so dose and the evidence on both 

sides so doubtful that the commit toe on credentials wishes to placate both 
sides, it will seat both contestants and give each one-half a vote. This explains 
the fractional ballots which sometimes occur. In the absence of a delegate his 
alternate votes for him and in the republican convention of 101; the chairman. 
Senator Root, ruled that if a delegate refused to vote his alternate would be 

called on " to do his duty." Some of the Massachusetts delegates were Roose> elt 

men and after the seating of a large number oi Tail delegates illegally, as it 
was claimed, tin- entire- Roosevelt representation refused to vote. The Mas- 
sachusetts alternates Were Fa ft men and two of them Wert allowed to vote in 
place of the regular delegates. This creates a new precedent ai\d shows the 
importance to each candidate of controlling the presiding officer, 



558 THE NEW AMERICAN GOVERNMENT 

8. The platform is presented by the chairman of the committee 
on resolutions. He has a difficult task to perform. The document 
must take a definite stand on many important questions, yet it 
must be worded in such a way as to catch as many votes as possible. 
For these reasons it is usually made up of general statements which 
can well be interpreted to suit the wishes and hopes of all factions 
of the party. A glance over recent platforms shows a surprising 
unanimity verging on monotony in the methods of expression em- 
ployed. The party " views with alarm" the evil machinations of 
its rival; it "deplores the lack of patriotism" shown by the foolish 
and blundering attempts at legislation, of which that rival has been 
guilty; it " points with pride" to the constructive efforts of its own 
followers and to the " sterling honesty and far-sighted statesmanship" 
of its candidates; it advocates "wise and well-considered laws" 
on disputed subjects; it demands "fearless honesty and rigid econ- 
omy" in the public administration; nor does it forget to mention 
both the "toiling masses" and the "plain people" many times and 
with affection. 1 

1 The following extracts from the party platforms of 191 2 on two of the 
most discussed problems before the people at that time, show how closely the 
party policies coincide on important questions and how strenuously the parties 
try to show that they do not. 

THE COST OF LIVING 

Democratic. — "The high cost of living is a serious problem in every American 
home. The Republican party, in its platform, attempts to escape from respon- 
sibility for present conditions by denying that they are due to a protective tariff. 
We take issue with them on this subject and charge that excessive prices result 
in a large measure from the high tariff laws enacted and maintained by the 
Republican party and from trusts and commercial conspiracies fostered and 
encouraged by such laws." 

Republican. — "The steadily increasing cost of living has become a matter 
not only of national, but of world-wide concern. The fact that it is not due to 
the protective tariff system is evidenced by the existence of similar conditions in 
countries which have a tariff policy different from our own, as well as by the 
fact that the cost of living has increased, while rates of duty have remained 
stationary or been reduced. 

"The Republican Party will support a prompt scientific inquiry into the 
causes which are operative, both in the United States and elsewhere to increase 
the cost of living. When the exact facts are known it will take the necessary 
steps to remove any abuses that may be found to exist, in order that the cost of 
the food, clothing and shelter of the people may in no way be unduly or artifi- 
cially increased." 

Progressive. — "The high cost of living is due partly to world-wide and partly 
to local causes; partly to natural and partly to artificial causes. The measures 
proposed in this platform on various subjects such as the tariff, the trusts and 
conservation, will of themselves tend to remove the artificial causes." 

CORPORATE REGULATION 

Democratic. — "A private monopoly is indefensible and intolerable. We 
therefore favor the vigorous enforcement of the criminal as well as the civil law 
against trusts and trust officials, and demand the enactment of such additional 
legislation as may be necessary to make it impossible for a private monopoly to 
exist in the United States. 



THE PARTY 559 

9. The vice-presidential nomination is made separately. Great 
care is exercised to choose a nominee who will strengthen the ticket 
by attracting the voters from some doubtful State. Certain of 
these may be swung into the party column by the choice of a favorite 
son. New York, Ohio, and Indiana are often called on to furnish 
either the head or the tail of the ticket. Not infrequently the vice 
presidency is also a sop thrown to the defeated faction in the party 
to enlist their support of the ticket. 

10. The election of the national committee for the ensuing four 
years is carefully prearranged and carried out with precision. Each 
State is entitled to one member on this committee and the State 
leaders instruct the delegations as to who this shall be. The fiction 
is that the convention elects this committee. The fact is that the 
delegates from each State transmit to the convention the name 
of the man chosen by "the chief" to represent the State on the 
national party executive. It is noc a surprising coincidence that 
this name is usually that of the chief himself. 

11. The final action in the convention is the appointment of a 
notification committee which later, at a time fixed by the candidate, 
waits upon him and announces to him his nomination. This is made 
the occasion of a lengthy address by the nominee, in the nature 
of a statement of his political principles, an elaboration of certain 
points in the platform and sometimes his own independent additions 
to it. Mr. Bryan received his committees at his home in Lincoln, 
McKinley upon the lawn of his residence in Canton, Mr. Roosevelt 
at his Oyster Bay estate and Mr. Wilson on the grounds of the sum- 
mer residence of the governor at Sea Girt, N. J. On all of these 
occasions the nominee has strengthened greatly his hold upon the 
party leaders by informal conferences with them and has undoubt- 

"We regret that the Sherman Anti-Trust law has received a judicial con- 
struction depriving it of much of its efficacy, and we favor the enactment of 
legislation which will restore to the statute the strength of which it has been 
deprived by such interpretation." 

Republican. — "The Republican Party favors the enactment oi legislation 
supplementary to the existing Anti-Trust Act which will define as criminal 
offences those specific acts that uniformly mark attempts to restrain and to 
monopolize trade, to the end that those who honestly intend to obey the law- 
may have a guide for their action and that those who aim to violate the law may 
the more surely be punished. The same certainty should be given to the law 
prohibiting combinations and monopolies thai characterizes other provisions of 
commercial law, in order that no part of the field of business opportunity may 
be restricted by monopoly or combination." 

Progressive. — "We demand that the test of true prosperity shall be the bene- 
fits conferred thereby on all the citizens not confined to individuals or classes and 
that the test of corporate efficiency shall be the ability better to sen e the public; 
that those who profit by control of business affairs shall justify that profit and 
that control by sharing with the public the fruits thereof, We therefore demand 
a strong national regulation of interstate corporations." 

It is an interesting commentary on party platforms that both the republican 
and progressive platforms proposed a national trade commission but the dem- 
ocratic did not, and that it was the democratic party which placed the trade 
commission law upon the statute book. 



560 THE NEW AMERICAN GOVERNMENT 

edly added greatly to his popularity by the skillful framing of his 
reply to the notification. 

On the whole the convention offers many picturesque, interesting 
and dramatic scenes which lend intensity to our political life, but 
we may not escape the question, — does it do its work? An impartial 
examination forces on us the conclusion that as a means of choosing 
the party's candidate for the Presidency the convention must soon 
be superseded by some simpler, more direct and less easily manip- 
ulated method. All our political machinery to-day is undergoing 
the same searching test of effectiveness. There is no longer any 
reason why we should resort to unduly roundabout and indirect 
means. Nor is machine-made applause the best test of popular 
favor. Why not allow the voters themselves, by preferential ballot, 
to make the nomination? 

State Party Organization. — The local machinery of a party is 
organized on its national model. In each commonwealth there is 
a State committee, a large body which seldom meets, most of its 
work being performed by the chairman. The State leader, who is 
usually one of the Senators, controls this committee completely. 
He consults with its members and with the local leaders from each 
county and congressional district, but all of the committee's resolu- 
tions, decisions and other acts are 0. K.'d by the leader before being 
presented to the committee itself. Nevertheless the committee may 
be important in times of emergency or crisis or factional welfare for 
control of the party organization. This is clear from a glance at its 
chief powers which are: (a) to draft the platform of the party in 
the State, (b) to fill vacancies which may occur among the party 
candidates shortly before election; (c) to conduct correspondence 
with the various local, county, city and congressional district com- 
mittees and with the national committee. This latter authority 
is much more important than it seems, — it gives the State committee 
power to determine which is the officially recognized party head in 
any local district. The local office-holders and those who want 
office are continually bickering for control of the local party organiza- 
tion. In a dispute between two rival factions the State committee 
makes an authoritative decision and by this means is often able to 
put down an insurrection in the party organization. No better 
answer than this can be given to those who favor "reform within 
the party," for let any independent faction no matter how numerous 
once show its head within the camp and attempt to control the organi- 
zation, and both it and its leaders will be excommunicated by the 
all-powerful State committee through the simple device of recog- 
nizing the other faction — the regulars, (d) It is in the State com- 
mittee, too, that the slate of delegates at large to the national Presi- 
dential convention is usually prepared, and advice given to the 
leaders in congressional districts as to the choice of their delegates 
to the convention. The State committee is chosen by the county 
committees, — one member from each county. Most of the States 



THE PARTY - 56 1 

now have direct primary laws enabling the members of the party 
to choose their own nominees for State offices. In the other com- 
monwealths conventions are held for this purpose and here the State 
committee issues the call for the convention and dominates the body 
in much the same way that the national committee controls its con- 
vention. The direct method of nomination has now become so 
unpopular that the days of the convention appear to be numbered 
in all of the commonwealths. 1 (e) One of the less important func- 
tions of the State committee about which, however, much enthu- 
siasm is shown, is the endorsement of the national platform in Presi- 
dential and congressional elections. This is done by a series of high- 
sounding resolutions which are intended for "domestic consumption " 
among the voters of the State, (f) The collection and distribution 
of funds for the State campaigns. Many State laws now provide 
for the publication of receipts and their sources, and expenses for 
all purposes connected with nominations and election campaigns. 

Local Party Organization. — The direct primary laws have abol- 
ished the local convention which was formerly the means of choos- 
ing candidates and making platforms. There remain now only a 
series of committees which represent, however, the strong ma- 
chinery of the party. These the rival factions in the organization 
eagerly seek to control. These committees are : 

The city or county committee, 

The ward committee, 

The district committee. 

The city, or in the rural sections the county committee, is a body 
of 40 or 50 men chosen by the ward committees or elected by the 
voters at the primary. Its powers correspond to those of the 
State committee and it uses to the full its prerogative of recognizing 
and supporting the local division committeemen and leaders and 
thereby determining who shall have the official party control in each 
locality. 2 It is the city committee which " steam-rollers" all 
dangerous independent leaders within the party fold. Its control of 
the funds also is unquestioned and despite laws requiring public 
statements of receipts and expenses most of the city committees 
to-day are still irresponsible; they are sometimes accused of mis- 
appropriating a part of the funds which pass through their hands. 

The ward committee or, in the rural sections, the township com- 
mittee, is chosen directly by the party members at the primary and 

1 One of the recent direct primary laws, that of 19x3 in Pennsylvania, provides 
that the State committee members shall be elected by the party voters, two 
committeemen from each of the fifty senatorial districts. The State committee 
elects the national committeemen from the State except when the national party 
rules provide otherwise. See Pennsylvania Laws 19x3, page 7SO. 

2 A faction which is not "recognized" by the city committee has no official 
party standing, its leaders and workers are dismissed from the city offices, and 
being separated from the "pay roll" it speedily languishes unless it is based on 
something stronger than the favor of the organisation; or can secure extensive 
public support. The close identity between party regularity and city office* 
holding is further set forth in the Chapter on The Civil Service. 



562 THE NEW AMERICAN GOVERNMENT 

is a miniature city committee. Under it come various district 
committees of which there are often 30 or 40 in a city ward, accord- 
ing to the density of the population. These are also chosen by the 
voters and it is to these latter that the real work of getting out the 
vote is delegated. Each district chairman has a certain sum of 
money allotted to him by the county committee; he also directs the 
party workers under his control. The central county or city com- 
mittee is kept well informed of the conditions in every subdivision 
at all times. The personal interests and affairs of each voter or 
the means which may be used to influence him must all be familiar 
to the local workers in the party organization. 

For this purpose each district is divided into small voting divi- 
sions or precincts under the control of responsible workers and it is 
the duty of these men to keep in the closest possible touch with 
every voter in the division. The worker keeps a book giving the 
name, residence and occupation of his neighbors and he carefully 
records before election time the way each man is expected to vote, 
with a list of those who are doubtful. If this work is well done the 
city or county committee is able to report to the State committee 
the apparent result of the election over a week before it takes place. 

Personal Work in the Party. — We must understand clearly that 
the work of the party is after all personal in its nature. The voter 
must be appealed to by a personal talk and through direct influence 
rather than by circulars or campaign letters. The party is therefore 
built upon the division worker as its foundation stone. If he is 
active and intelligent, and if he keeps in friendly touch with the 
voters frequently from one election to another, the party usually 
succeeds in his division. The committee chairmen recognizing 
this, hold frequent meetings with the workers to enthuse them with 
a spirit of watchfulness and devotion. Observe the clever way 
in which the worker is made to feel that he is responsible for results 
in the following speech delivered before the city committee in one of 
our largest municipalities, by an exceedingly capable and "prac- 
tical" leader: 

"We just went through a campaign in the last primaries, which 
shows something lacking in some sections of the city which demands 
reconstruction. Part of that condition is due to some men in this 
room. No man here is better than his fellow, and we demand the 
same thing from all, party loyalty and the polling of the party vote 
at every election. 

"I want to say that in the 21 years that I have been in politics 
I never saw a Moses come down and assume leadership. That must 
come from work and the support of machinery all along the line. 
We have nothing really to fear in the coming election if that loyalty 
is evinced and the men stand by their guns. We have a great asset 
in the honest and straightforward administration at City Hall. 
At the head of our ticket is S. P. R. who is a man for whom the 
workers can ask support fearlessly. He has shown fidelity and 



THE PARTY k67 

uprightness in all his acts and proved himself a most fearless 
official" 

Taking up an analysis of the causes of the revolt at the last 
primaries, the speaker concluded : 

"As a result of experience some ward leaders imagine that they 
dominate the entire locality. As long as they hold themselves above 
the people and do not continue the work necessary at election times 
and throughout the year so long will they be sure to get such a jolt 
as they received at the last primary. Let us remember that we 
must not treat with disdain or pass over men who said something 
harsh against us in the past. If we go to the offices or homes of 
these men and discuss conditions with them instead of having their 
opposition we will have their support. That is one thing we have 
got to do to win in November. All kinds of criticism has been 
made against us. There is no act of mine that I am ashamed of. 
I and all of you weigh us against the opposing leaders. To-day 
we find the same old outfit attempting to revive the same old 
conditions of a few years ago. So what we must do to overcome 
this is to get out among the people, learn their needs, what they are 
complaining about, and do what we can to rectify conditions. 
Office-holders — men who owe their livelihood to the organization — 
have been derelict. It is up to the Ward and City Committee- 
men to make the office-holders recognize the duty of maintaining 
the Organization. If they go along on that platform and do what is 
required of them, we will have a larger majority for the ticket in 
November than before. 

"In one division there were twenty-four office-holders and only 
nineteen votes were cast for the head of the ticket at the primary 
election. That condition cannot remain. In some sections of the 
city there are 6,000 office-holders. They did not come up to their 
duty in the primary, while 4,000 were required to cany the ticket 
to victory." Before the meeting adjourned the leader cautioned the 
committeemen to be alert during the summer. He requested that 
they leave their addresses if they left the city, as it might be neces- 
sary to summon them at any time. 

Sources of Party Funds. — The chief sources of supply for the 
party treasury are: 

(a) Assessments upon office-holders. 

(b) Voluntary contributions from large "interests," to the party, 
and from candidates. 

(c) "Tribute 1 ' exacted by the management from the underworld 
and from corporations which require special privileges and :'.i\ 

1 On this interesting subject Henry J. Ford in His .'. 
American Politics, page 323, says, "The cost of part} subsistence v.mr.. 
computed. Exact data are unattainable. Although various 1 have 

been made, they are all worthless and are all probably l>elow the mark, alt! 
some of them mount into many millions of dollars, It is quite probabli 
party organization costs more than any one of the regular dcoartmc 
government. It is a fond delusion of the people thai QUI republican fol 



564 THE NEW AMEiaCAN GOVERNMENT 

The Progressive and Socialist parties collect their funds in small 
amounts from the rank and file of their membership. 

The assessment of office-holders is a time-honored custom which 
has never been neglected even under the strictest enforcement of the 
civil service laws. Those acts all make it a misdemeanor for any 
party management or public official to demand payments from civil 
employes. While the letter of the law is sometimes complied with, 
its spirit is notoriously broken in Federal, State and municipal 
services. An "opportunity" is always given to the party members 
to contribute, which they embrace willingly or otherwise. The 
amount suggested is seldom less than 2% and in the city govern- 
ments often runs to 5% of the annual income. Candidates for 
elective offices frequently give much more, in addition to making 
handsome appropriations toward "expenses" when they are 
running for the nomination itself. In the Federal Government the 
subordinate employes have to some extent escaped this tax but in 
the city governments it is still collected on a large scale and forms a 
noticeable item in party receipts. Until the enactment of the 
Federal and State laws forbidding corporate contributions to polit- 
ical campaign funds, it was customary for all the large companies 
to appropriate heavily for political purposes. Many of them gave 
freely to both parties! The reason for this surprising practice was 
simple, — the majority was in power and must be placated but the 
minority might at any moment start an anti-corporation crusade 
which would receive popular support and place it in office. Both 
organizations, therefore, must receive retainers of considerable 
amount. Added to this it was formerly the custom for some of ihe 
large financial interests to carry on their pay roll as "counsel" or 
for "services rendered" a number of leading politicians in either or 
both parties. The life insurance investigation in New York showed 
that a United States senator was receiving $15,000 yearly as a mere 
retaining fee or tip, for services which could not be described. It is 
difficult, if not impossible, to draw the line sharply between per- 
sonal fees of this nature and genuine contributions to the party 
cash box, because the party funds themselves are paid out to 
individuals, and to city, district and division leaders for expenses. 
It is frequently inferred if not understood that a gift to the party 
will secure the favor of certain influential leaders. This is a round- 
about way of saying that the leader often uses the party treasury as 
a cover for exacting contributions from big interests to his own and 
his friends' pocketbooks. 

Both contributions and taxes on office-holders are totally in- 
adequate to cover political expenses. From the wasteful and costly 
way in which the "organization" does its work there must be some 

government is less expensive than the monarchical forms which obtain in 
Europe. The truth is that ours is the costliest government in the world." 
Mr. Ford is a vigorous defender and apologist of modern parties and his view a* 
to their extravagance is probably correct. 



THE PARTY 565 

additional source of revenue. This is found in " tribute." The 
extent to which it may be levied is limited only by the conscience of 
the organization — and it has a conscience — and the complacency 
of the public. There are always contractors who want municipal 
and other public work on street and road repairs, water supply 
systems, buildings, sewers, etc. There are great public service 
corporations, street and steam railways, gas companies, electric 
light and power concerns, all of which want to erect their poles, lay 
their conduits and pipes and secure permission to transact business 
within the city or State. There are countless small dives, speak- 
easies, gambling places and the resorts of vice which are operating 
contrary to the law and which need "protection" from police raids. 
Not a dollar collected from any of these sources is legally paid. 
Yet a continuous series of revelations in large cities from New 
York to San Francisco show that the amount so turned over to 
individuals and to party agents must reach a staggering total, — ■ 
much of it paid as personal graft. A great deal leaks through the 
collector's fingers into devious channels of officialdom but some of it 
reaches the party treasury and forms either directly or indirectly 
one of the chief means of rewarding the party workers. Looking at 
it from a slightly different angle, the party asks contributions from 
the office-holders and the protected, vested interests, — it is offered 
tribute by the underworld for freedom from prosecution, while 
individual vampire leaders demand and take from both legitimate 
and illegitimate enterprises their personal quota. This process goes 
on until either the underworld revolts, as in the Rosenthal case in 
New York, or through some chance combination of circumstances, 
an investigation into political graft is ordered and the public has 
proved to it what it has for years suspected or known. The whole 
sordid list of sources of tribute is then laid bare. 

To many these conditions of party finances present a hopeless 
picture of decadence but on the whole there is every reason for 
encouragement in the rising standard of honesty and a growing 
public unwillingness to be hoodwinked by party shibboleths and 
war cries. It is impossible to wax enthusiastic or remain servile 
under the direction of party leaders who are known to be supported 
by such questionable means. Political organizations, particularly 
in the local governments, which are so unfortunately based on 
illicit sources of revenue, cannot command the same unquestioning 
obedience from the masses of the voters as before the disclosure of 
their predatory nature. The change in party standards is slow but 
it is undoubted and with every demand for the increased efficiency 
and greater usefulness of our governments, a lexer is placed under 
the party system to raise it towards a higher standard oi hone-tv. 
/// all this change we natsl remember thai the im 
wrought by stronger prohibitions of dishonesty nor ) 
ties on political crime, but by the action of m 
public attention to higher and more useful 



566 THE NEW AMERICAN GOVERNMENT 

ment. The demand for clean streets, cheaper light, better car 
service, more efficient schools, purer water supply and other im- 
proved living conditions is incompatible with and strongly hostile 
to loose, corrupt and dishonest party methods. It is not the 
stronger prohibition of corrupt partisanship but the new ideal of 
government usefulness, which is raising the party from its ancient 
conditions. 1 

Public Regulation of Party Finances. — The same popular senti- 
ment which decreed that party organization, committees and pri- 
maries must be subject to government control, has led to the pas- 
sage of numerous acts providing for publicity of campaign accounts 
and forbidding corporate contributions to party funds. Most 
of the States have laws containing both of these provisions. They 
were greatly stimulated by the insurance exposures in New York, 
which showed the general custom of the large companies to con- 

1 Professor Ford believes that the party's lack of responsiveness to the popular 
will and its exclusive control by professional politicians, and by corrupt elements 
masquerading as friends of the party, are chargeable to our failure to make the 
party responsible, by giving it full control of the government. We should unite 
executive and legislative authority so that the same persons would wield both. 
He holds that if we gave to the party majority, control over both these 
departments, we should force responsibility on the party and by the same act 
place it under popular control. In The Rise and Growth of American Politics, 
page 326, he contrasts our party power with that in England. "Unlike an 
English party, it cannot itself formulate measures, direct the course of legisla- 
tion, and assume the direct responsibility of administration. All that it (the 
American party) can do is to certify the political complexion of candidates, 
leaving it to be inferred that their common purpose will effect such unity of 
action as will control legislation and direct administration in accordance with 
party professions. The peculiarities of American party government are all due 
to this separation of party management from direct and immediate responsibility 
for the administration of government. Party organization is compelled to act 
through executive and legislative deputies, who, while always far from dis- 
avowing their party obligations, are quite free to use their own discretion as to 
the way in which they shall interpret and fulfil the party pledges. Meanwhile 
they are shielded, by the constitutional partitions of privilege and distributions 
of authority, from any direct and specific responsibility for delay or failure in 
coming to an agreement for the accomplishment of party purposes. Authority 
being divided, responsibility is uncertain and confused, and the accountability 
of the government to the people is not at all definite or precise." And on 
page 352 — "But so long as our constitutional system provides that an adminis- 
tration chosen to carry out a party policy shall be debarred from initiating and 
directing that policy in legislation, just so long is the party machine a necessary 
intermediary between the people and their government, and just so long will 
party management constitute a trade which those who have a vocation for 
politics cannot neglect, and those who make a business of politics will make as 
profitable as they can." Page 356 — "On the contrary, there is abundant 
evidence to confirm the opinion that party organization continues to be the sole 
efficient means of administrative union between the executive and legislative 
branches of the government, and that whatever tends to maintain and perfect 
that union makes for orderly politics and constitutional progress; while what- 
ever tends to impair that union, disturbs the constitutional poise of the govern- 
ment, obstructs its functions, and introduces an anarchic condition of affairs 
full of danger to all social interests. This is the cardinal principle of American 
politics." 



THE PARTY 567 

tribute to the campaign funds of both parties. Their investigations 
soon revealed the fact that this was a general practice among all 
the larger corporations. The Federal Government in 1907 enacted 
a law forbidding such gifts by corporations to the political funds of 
candidates for the Presidency or for Congress. The Federal Act of 
June 25, 1910, also provides that national political committees and 
organizations taking part in elections for representatives in Congress 
shall have a chairman and a treasurer. The treasurer must keep a 
" detailed and exact account " of all money or its equivalent received 
or promised to the committee and its agents, and the names of all 
persons, firms, or other committees from whom such amounts are re- 
ceived and all expenditures and promises of payment made by the 
committee or its agents, with the names of the persons to whom 
the disbursement is made. All payments in excess of $10 shall be 
vouched for by a receipt giving the particulars of expense. The 
treasurer of the committee is required to file with the clerk of the 
House of Representatives at Washington within thirty days after 
the election an itemized detailed sworn statement covering such 
receipts and expenditures and including the total sums received 
and disbursed. Likewise any person, firm or association, except 
the political committees above described, who shall make any con- 
tribution of more than $50 toward a congressional election, except 
to a committee subject to the Act, shall also file a statement under 
oath with the clerk of the House of Representatives. The act does 
not apply to local political committees but only to those who take 
part in elections in more than one State. 

Causes of Party Subservience. — The question is often asked, 
why are so many men of intelligence bound to their parties by an 
allegiance verging on servility and why do they even tolerate dis- 
honesty in the leadership of the organization? There are three 
strong reasons for this feeling. First — The party represents business 
interests, as we have seen, and citizens too often hesitate to dis- 
turb the party structure so long as it subserves those interests. 
Second — The party has great historical traditions. It "saved the 
Union," or it "was established by Thomas Jefferson." The voter 
whose father and grandfather "voted the ticket" is slow to desert 
the party of his ancestors and even when his interests and his ideals 
urge him to do so, the detaining force of tradition stays him and he 
"goes along" with his party. Many a citizen has arisen on election 
day firmly convinced that the time has come for independent action. 
But as he approaches the polls and realizes that a vote for the op- 
posite party means a blow at the organization for which he and his 
friends have stood for many years, a doubt enters his mind. His 
ballot is handed to him, familiar faces of the local political workers 
surround him, it may be a close election and these men are depend- 
ing on his vote; they rely on him. The doubt grows stronger. He 
enters the booth and takes the pencil to mark his ballot; his mind 
is assailed by a flood of doubts and misgivings. He thinks of the 



568 THE NEW AMERICAN GOVERNMENT 

grievous blunders and "treasonable" practices of the opposite 
party^ for which he is now about to vote. He remembers that its 
leaders are politicians like those of his own, he recalls that the talk 
of " reform" is too often a mere ruse to put ambitious men into 
office, he considers again the long line of strong candidates who 
have represented his party in the past, and his family tradition 
of loyalty to those candidates — insensibly his pencil creeps over 
to the column of his first allegiance, and he votes the old ticket. 

Party Clubs. — Shrewd political leaders realize this force of party 
tradition and make capital of it. The political speaker who appeals 
to his audience solely on the issues of the campaign loses half his 
opportunity. Party loyalty, party history, party prejudice are 
solid, substantial facts in every political campaign and they play 
as important a part as does the question of policy. The third reason 
for subservience to party is the strong influence of social connections 
and personal friendships within the organization. This is notice- 
able in the large cities where the political leaders form party clubs 
which play an active and continuous role in the social life of every 
neighborhood. These clubs offer an inexpensive and attractive 
social center for the men of the district, and it is made the duty of 
every party worker to frequent them regularly and cultivate the 
acquaintance of his neighbors in them. The clubhouse, often 
owned by the club, is fitted up with every comfort, convenience or 
attraction demanded by the tastes of the membership. The dues 
are not high, nor are the rules oppressively strict. Here one sees 
the local leader in his most accessible mood, and here too one may 
rub elbows with the division and precinct workers and call them by 
their first names. The club is the great clearing house of political 
information and rumor; it serves all the purposes of a trade union 
or a business or professional body and keeps the younger element 
interested in and acquainted with their work. 

Leaders in this way are able to hold the allegiance and interest 
of the voter and the workers, during all parts of the year even 
when no election is to be held. The growth of the club movement 
has been so rapid that in 1887 a national league of Republican clubs 
was formed to be followed soon afterward by a similar league of 
Democratic clubs. Each league holds its convention modeled on the 
plan of the party's national convention. As new conditions arise 
to affect the party's welfare the leaders extend the club movement 
to cover each new social element in the city. They form associa- 
tions among the various races and other groups who might be 
interested in the party; there are German- American Clubs, Italian 
Clubs, College Clubs, and Young Men's Clubs, etc. Through all 
this activity the party organization becomes doubly entrenched and 
permanent because it is built upon a broad social foundation. 

But in spite of the undoubted strength of the system that has 
been so shrewdly built upon this basis, party allegiance is rapidly 
weakening. It is a peculiar result of modern inventions that human 



THE PARTY 569 

interests, occupations and pleasures are broadening with increasing 
rapidity. The former narrow and intense interests no longer control 
our actions. We are still influenced by the strong personality of a 
great political leader but we refuse to follow with enthusiastic, 
unquestioning obedience the commands of any party organization. 
Our broadened horizon has clearly led us to do an ever larger share 
of our own thinking. The old parties demanded Stalwarts; the 
new conditions are producing independents. It is no longer a 
shock to learn that our neighbor has changed his vote. The party 
is being called on like ordinary, commonplace institutions, to 
produce results. 

The Rise of Party Issues. — The basic strength of a party in any 
cection is due to its espousal of the business and social interests 
of that section. In the East the Republican party stands for pro- 
tection. The great mineral resources of Pennsylvania for example 
have made that State a manufacturing and mining community. 
The protective tariff has encouraged, iron, steel, silks, woolens, 
carpets and all other textile manufactures, until the people of the 
State feel that protection is the corner-stone of their prosperity. 
So long as the Republican party stands for protection and the Dem- 
ocrats for free trade, the choice between the two parties is an easy 
one. The same holds true in lesser degree of the manufacturing 
interests of New York and New England. In the West, the farm- 
ing interests have demanded a reduction in the prices of manufac- 
tured products, and have claimed that the protective tariff should 
be lowered in order to effect a lowering in the price. The farmer 
wants high prices for his grain and food-stuffs and low prices for the 
manufactured products which he buys. Nearly the entire agricul- 
tural section of the West supported, in 191 2, the parties demanding 
customs revision. 

In the South the race issue, caused by the 14th Amendment to 
the Constitution intended to protect the voting rights of the 
Negro, has permanently estranged the white race from the Repub- 
lican party and allied it with the Democrats because the latter 
stand for white supremacy. A further example may be seen in the 
free silver movement of 1892-96. The farmers who had mortgaged 
their lands during the agricultural depression and who therefore 
wanted to pay their debts in the cheapest money possible, together 
with the silver mining interests, formed a combine oi the Democratic 
and the Populist parties to agitate for free coinage oi silver. This 
movement, if successful, would have had far-reaching effects, both 
economic and political. It died out because oi the reviving pros- 
perity of the western farmer. For many years the party polities 
of New England were controlled by the shipping interests oi that 
district. On the Pacific Coast, the Chinese and Japanese race 
questions have always played an important role in determining 
party issues, the laboring elasses demanding the exclusion oi the 
Asiatic cheap laborer in order to protect the standard oi Living of 



570 THE NEW AMERICAN GOVERNMENT 

the white workman. In many States, the railway questions of the 
last thirty years have formed party issues in politics. The rates 
charged by the railways, the facilities offered to shippers, the dis- 
criminations between large and small shippers have all been points 
around which political agitation has centered. The party making 
the strongest bid for popular favor on each of these local issues 
naturally strengthened its hold on the community. In reality 
then, party issues are only questions of business, race or social 
condition, transferred to the field of politics. 

Rise of New Party Leaders. — One of the striking phases of 
American public life is the complete resetting of the political stage 
in the last ten years. Not since the critical days of the Civil War 
has there been such a clean sweep of both men and issues as is now 
taking place. Undoubtedly its very completeness shows that we 
are entering a new era. What makes a new era? What is the real 
importance of a new leader? We like to think that all political 
progress is the work of great personalities who "create" new prin- 
ciples; we commonly say that Jackson suppressed Nullification, 
that Clay produced the Missouri Compromise between slave and 
free States, that Lincoln preserved the Union, that McKinley es- 
tablished the gold standard and that Roosevelt created our policy 
of government regulation, but history gives us a different and far 
more interesting view of the facts. What really happens is that 
the gradual shifting of conditions produces some great new need 
which is at first only dimly felt by the people and their leaders. 
Slowly it grows until some politician with both courage and fore- 
sight arises and boldly champions the new idea, regardless of im- 
mediate consequences to himself and his party. The "idea" be- 
comes an issue, and the politician a leader. He does not create 
the new thought nor is he the sole cause of the new situation, but 
his clearness of vision, strength of purpose and close touch with the 
people enable him to see the need of the hour, to make it an issue 
and to lead a political movement for its success. Lincoln did 
not invent a new idea; he saw, with the eye of a prophet, that the 
slavery issue could not be compromised. The whole territory of 
the nation must be either slave or free. He became the political 
leader of the nation, by grappling with the master-problem of his 
time and demanding its complete and radical solution. McKinley 
did not establish the gold currency. When first nominated in 1896, 
he was inclined to avoid the issue. But becoming convinced that 
there could be no compromise he enlisted with all his energy and 
enthusiasm in the educational campaign for the gold standard. 
Roosevelt was not the first to suggest a strong Federal regulation 
of corporate affairs, but at a time when popular thought was 
chaotic and unformed he grasped this solution firmly and by his 
wonderful genius in guiding and molding public sentiment, he led 
the way towards a solution. No one doubts where our presidents 
stand on any important problem. Our new leaders in all parties 



THE PARTY 571 

to-day have less desire to "wobble" and to please all men by com- 
promise, and more willingness to face rather than dodge an issue. 
We are developing a more straightforward and forceful type of poli- 
tician because our political questions require more positive action. 
New Issues. — The natural line of division between parties where 
unfortunate racial or religious issues do not enter, is between the 
conservative and the advanced or liberal-radical groups. This 
has proven true in the long run of all the great parliamentary parties 
of the world. Among the conservative group are usually found 
the bulk of the landowners and their adherents together with the 
representatives of large corporations, a great section of the middle 
class which is naturally conservative by environment, and many 
farmers. In the radical-liberal class, the small storekeeper, the 
working class, and the small farmer usually form the backbone 
of the organization. Parties never divide solely and exclusively 
along these lines, but an examination of party history through a 
long period shows this to have been the main line of cleavage. 
In America up to about 1890, the Democratic party represented 
the more conservative element. The Republican and its prede- 
cessor, the Whig party, had presented advanced progressive doc- 
trines. The Democrats had been strongly influenced by the long 
line of statesmen who held to the strict construction, exclusively 
legal, view of the Constitution and objected to the growing power 
of the National Government. This States' rights theory of the 
Democrats was essentially a conservative idea. The new Repub- 
lican party had thrown itself heartily into the battle for protection, 
and even for the use of force against the States, to maintain the na- 
tional union. This latter doctrine, while conservative in theory, was 
drastic and radical in effect. The Republicans were everywhere 
regarded as the advocates of new and advanced ideas and principles 
of government and were closely allied with the new manufacturing 
industries of the North and East. It is interesting to see how this 
alignment has now changed completely. The success of the pro- 
tective policy led to the growth of immense manufacturing, trans- 
port, and banking corporations whose continued prosperity the 
Republican party espoused. This was a conservative tendency. 
But the development of these interests produced such glaring 
inequalities in wealth and created such a large class of industrial 
laborers clamoring for a greater share in the distribution oi the new- 
wealth created, that it speedily became essential for all political 
parties to recognize and attract this new class. This became a 
disturbing radical force. Meanwhile a period oi great agricultural 
depression had set in and the 1 small fanners demanded relief from 
the high prices attributed to the protective tariff, as we have seen. 
The Republicans sought to hold the industrial laborers by claiming 
that a. vote against protection was a vote against industry, and 
in this they were successful for many years. Meanwhile the 
Democrats succeeded in holding the South through the race issue 



572 THE NEW AMERICAN GOVERNMENT 

and in winning a large section of the farmers through the issue of 
high prices. This division of parties soon became a standard, 
recognized feature of American political life. In the long run it 
could not continue, however, because neither party could indefi- 
nitely appeal to the two conflicting elements which both contained. 
The Democrats were the first to disintegrate. The radical element, 
demanding closer attention to the needs of the small man, soon 
got the upper hand and under Mr. Bryan held the party machinery 
for several elections, in which, however, it was defeated. Then 
came the turn of the Republicans, the insurgent movement cul- 
minating in Mr. Roosevelt's championship of the radical-liberal 
cause, also produced a split which as we have seen brought the 
party to defeat in 191 2. In the meantime the Democratic reor- 
ganization had been proceeding slowly and the radicals under 
Mr. Bryan reasserted themselves in the nomination of Mr. Wilson, 
while the Republicans, chastened in spirit, are making great con- 
cessions in principle to win back the radical element to the fold. 
It is clear that we cannot have two radical nor two conservative 
parties. Undoubtedly the immense majority of the voters have 
now definitely and finally accepted a general policy of government, 
on business and social questions which ten years ago would have 
been considered dangerous if not subversive. Undoubtedly also 
public opinion is still favorable to further regulative action and has 
set its face against the policy and leadership of the older, reactionary 
element in both parties. But not all Americans are radical or even 
advanced liberals. There is a numerous and influential class of our 
people who are deeply and permanently hostile to the whole plan 
of regulation, and who emphasize the preservation of property 
rights. It would seem natural, therefore, that in the course of 
a few elections one of the major parties should become finally 
fixed as a conservative force, while the other casts in its fortunes 
permanently with the radical element. We are in the midst of a 
break-up of old party differences, a shifting to new issues and a 
division along other lines of cleavage. 

REFERENCES 

Campaign Textbook of each party. 
H. J. Ford: Rise and Growth of American Politics. 
C. L. Jones: Readings on Parties. 

M. Ostrogorski: Democracy and the Party System in the United States. 
P. O. Ray: Introduction to Practical Politics. Political Parties and Practical 
Politics. 

J. A. Woodburn: Political Parties. 

F. J. Goodno w : Politics and A dministration. 

QUESTIONS 

1. Secure by letter to the Secretary of the State committee of either party 
in your State the following information : 

(a) How many delegates is the party in this State entitled to in 
the National Convention? 



i THE PARTY 573 

(b) How are they chosen? 

2. How is the national committee chosen and why do candidates for the 
party nomination seek to control the committee? 

3. What is its exact power over contesting delegations for seats in the 
convention? Why does a candidate try to secure control of the committee? 
Example. 

4. How are funds raised for Presidential elections? 

5. What are the other powers of the committee? 

6. Who calls the national convention? 

7. How are delegates apportioned among the States? 

8. Explain how the apportionment system makes trouble for the conven- 
tion and the party. 

9. How could the system be improved? How have the Republicans changed 
their apportionment? 

10. How are the delegates chosen? 

n. Explain the chief features of the New Jersey Presidential Pn'mary 
Act. 

1 2. What are the defects of the Presidential primary? 

13. What do you consider the main work of the national convention? 

14. Explain the influence of office-holders in the convention of the majority 
party. 

1 5 . Outline the usual order of business of the convention. 

16. Explain the importance of the choice of the chairman. 

17. Describe the practical methods now employed to impress the delegates 
with the popularity of a candidate. 

18. What is the work of the committee on credentials? 

19. Explain Mr. Bryan's influence in nominating Mr. Wilson. 

20. How can a delegate have half a vote? 

2 1 . What is the Unit Rule and why has it fallen into disfavor? 

2 2. Explain the methods followed in the preparation of the platform. 

23. Explain the guiding principles followed by the leaders in selecting the 
nominee for Vice President? 

24. Give your impressions of the usefulness of the national convention. 

25. Resolved that each party should nominate its candidate for the Pres- 
idency by a preferential primary system. Take either side. 

26. How is the State committee chosen? Is it the real or nominal authority 
in the party and why? 

27. Explain its chief powers and duties? 

28. How can it suppress independent tendencies in local divisions of the 
party? 

29. Are candidates for State offices nominated by convention or primary in 
your State? 

30. Outline the city, ward and district authorities of the party. 

3 1 . What are the powers of the ward committee? 

32. Who does the work of getting out the vote? 

55. How far are the various committees held to strict accountability for the 
funds which they handle? Have you a campaign fund publicity law in your 
State? 

34. Explain the methods used in getting the voters registered and 
voted. 

35. Explain the point of view of the leader in his conference with the mem- 
bers of the committee. 

36. Why do men of intelligence often submit to objectionable leadership in 
the party organization? 

37. Visit a political club and report on its constitution, by-laws and the 
social and political features of the club. 

38. Explain how party platforms and business and social interests arc con- 
nected. Examples. 

39. Why have so many new leaders and new issues come into the political 
arena in recent years? 



574 



THE NEW AMERICAN GOVERNMENT 



40. Give your impressions of the influence of personality and of business and 
social conditions respectively in the rise of party issues. 

41. Why are positive leaders superseding the older, issue-dodging type of 
politician? 

42. Resolved that I can secure greater progress for the community by sub- 
mitting to the rules and leaders of the two older parties. Defend either side of 
this question. 

43. Prepare an essay on ' ' The Real Value of the Party to the People." 



CHAPTER XXVII 
PUBLIC OPINION 

If we scratch beneath the surface at any point in our government 
we come upon "public opinion." The Acts of Congress, the orders 
issued by the President, the decisions of the courts, are only the 
results of this force, they are the mere surface of our political life. 
Underneath all these is the real, vital power itself. How does this 
opinion arise? How is it expressed? In what way does it act? The 
answer to these questions shows us some of the most interesting 
features of our political system. Next to the press, the chief means 
of organizing and influencing American public sentiment to-day is 
some association or society. 

The Private Association. — Here we find the prime difference be- 
tween the politics of the Teutonic and other races. The Teuton 
and especially the Anglo-Saxon, is given to tolerance and co-operation 
with his fellowmen in every department of life. " Team-work" 
is almost instinctive with him, he organizes clubs, committees and 
societies and devotes himself to their purposes with a readiness, 
skill and persistence that mark him as a special race type. Whether 
it be in affairs of the church, the shop, or the athletic field, the Saxon 
has through long centuries developed traditions and habits of joint 
action. In doing so he has become the master politician of the world. 
A race which can co-operate, can govern itself, for self-government 
is team-work transferred to the field of politics. Team-work means 
that each man is willing to submit himself to the welfare of the 
whole body, that he controls his personal likes and dislikes enough 
to submerge them in the common effort for a common good, that 
after many trials he has learned to discuss with some tolerance, mod- 
eration and fairness the problems of his group, and has formed the 
habit of steady, concerted effort. Other races have greater enthu- 
siasm and intensity of spirit, brighter flashes of genius, and higher 
inspirations of artistic taste, — the Saxon has the ability to work with 
his fellowmen. He is not an inventor of brilliant political theories but 
is blessed with that humbler yet rarer gift of making theories work. 
Bryce has well said that we have not a great political system but a 
great ability to work a poor system. 

In America group action by associations, both business and civic, 
is more widespread than in any other country of the world. The 
purposes and number of such associations are legion, but certain 
of them exert such a strong influence on government as to deserve 
special mention: — 

i. Trade and business associations, c. g., the National Association 

575 



576 THE NEW AMERICAN GOVERNMENT 

of Manufacturers, the National Grange of Patrons of Husbandry, 
the American Bankers' Association, American Publishers' Associa- 
tion, American Federation of Labor; 

2. Those intended to promote social progress and the improvement 
of economic and social conditions, e. g., the National Child Labor 
Committee, the Public Health Association, the National Conserva- 
tion Congress, the National Education Association; 

3. Those concerned with the improvement of our government, 
such as the Short Ballot organization, the Bureaus of Municipal 
Research, the Direct Legislation League, National Municipal League. 

Without exaggeration it may be said that these associations de- 
velop and guide public opinion on every important question in their 
respective fields. If tariff legislation is to be passed in Congress 
each important manufacturers' association in the country informs 
its members and asks their active interest and support in influencing 
the new bill. It also sends a representative to Washington. If the 
bill be one affecting the currency or the financial conditions of the 
country the American Bankers' Association, the State Associations 
of Bankers, or the various bank Clearing Houses and Boards of Trade 
of the large cities send committees to urge their views. So systematic 
has this work become that every large business association now has 
its legislative committee whose duty it is to oppose hostile bills and 
especially to bring to bear on new lawmaking the full force and in- 
fluence of its membership. 

Expert Service. — A prominent feature of the business or civic 
league is its employment of experts. When the bankers sought to 
win the country to a central bank plan they secured research special- 
ists on money and currency, on credit and on banking organization. 
These men brought to the report of the National Monetary Com- 
mission a full knowledge of such problems both here and abroad. 
When an industry is to be unionized or a strike conducted against 
heavy obstacles, the American Federation of Labor and the special 
trade union involved, send their strongest, most experienced organi- 
zers upon the scene. When a serious labor dispute threatens the 
member of an efficient employers' association, that body hurries to 
his aid a skilled and seasoned specialist in labor troubles, who brings 
to bear the methods and resources born of many a struggle. When 
the members of a telephone or electric lighting combination are asked 
by a public service commission to show cause why their rates should 
not be lowered or their service improved they have at their com- 
mand the best engineering, accounting and legal skill obtainable. 
So great is the advantage which they enjoy in this respect that in 
19 14 the principal cities of the country established the National 
Bureau of Municipal Public Utilities Research, a body designed to 
create a permanent staff of experts on public service rates, services, 
and similar problems, and place them at the disposal of the cities 
forming the bureau. This would greatly strengthen the cities in 
question in hearings before the State public service commissions. 



public opinion 577 

When any associations such as those above described seek to influence 
legislation, they present a measure drawn by the best technical 
ability available. Whether the effort be to amend the national 
tariff or to improve the local school administration the change is 
drafted by "a man who knows." It is this element of professional 
service in our opinion-guiding associations that has lifted them to 
their present importance and usefulness and given them their positive 
and constructive features, which we shall consider later. In addition, 
all the larger bodies have a professional secretary. He usually edits 
a periodical, magazine or publication for the society, secures new 
members, and devotes his time to its propaganda and purposes. 1 
We shall consider the practical work of some of these organizations. 
The Woolen Manufacturer. — One of the most efficient bodies in 
molding public opinion is the National Association of Wool Manu- 
facturers formed in 1864 for the double purpose of supporting the 
protective tariff and of diffusing information about the industry. 
The Association publishes a quarterly bulletin containing articles 
on the technical sides of the business and explaining proposed legis- 
lation which may affect the industry. An excellent instance of this 
is the special tariff number of March, 1909, and that of September, 
1910. This bulletin is sent regularly to all members of the Associa- 
tion, to other manufacturers in the industry and to a selected list 
of influential newspapers, also to college and public libraries. 
Whenever a notable address or argument bearing on the industry 
appears, it is published in the bulletin and republished in pamphlet 
form for wider distribution. Often thousands of such copies are 
sent to the press, to public men and business men in all parts of 
the United States. One of these is entitled " What are the Protected 
Industries?" and is designed to show that farming and similar 
occupations profit quite as much from the tariff as does the manu- 
facturer. When a revision of the tariff is proposed the association 
carefully prepares a brief for the wool manufacturer, which is 
drawn up and presented by a special committee representing all 
branches of the industry. This brief is placed before the Com- 
mittee on Ways and Means in the House of Representatives and 
the Senate Committee on Finance. The care and thoroughness 
with which these are prepared have made them models in form and 
have even led to their publication by Congress. They are also 
printed in the bulletin and in pamphlet form and are sent broadcast 
to the members and to leaders of public opinion. It is a significant 
fact that aside from the merits of the controversy between the 
Association and the low tariff advocates the woolen schedule oi the 
tariff has been kept at a higher point than that on most other 
industries. Hut the influence ami activity o\ this association arc 
not limited to times oi emergency; scarcely a week passes but that 

1 These secretaryships offer positions for which College men may well prepare 
themselves. Many of them are well paid, the salaries running from $i|5O0 to 

$0,ooo; a few even higher. 



578 THE NEW AMERICAN GOVERNMENT 

some statement is given to the press concerning the industry or some 
expression of opinion of its members as to public policy. It is not 
easy to measure the exact influence of this constant and systematic 
effort, but judged by its practical results the influence must be 
strong. 

The Farmer. — For many generations the farmer has been in- 
adequately represented in public life and elsewhere, because his 
industry is not well organized. The National Grange of Patrons of 
Husbandry was established to remedy this defect and to make the 
influence of the farmer felt in national legislation and other fields. 
The Grange is divided into State Granges which hold local meetings 
in various sections of each commonwealth and discuss a wide range 
of topics, both technical and political. The selection of subjects for 
discussion at these meetings determines largely the thought of the 
agricultural community on questions of public policy, and an 
expression of this thought by representatives of the Grange is in 
the best sense authoritative. Let us examine briefly some of these 
discussions and their effect on public opinion. 

The National Grange is interested primarily in such questions as 
the tariff, railway rates, grain elevator charges, etc. The State 
granges take a more active interest in technical questions of farming 
and in the State laws to suppress the fraudulent competition with 
farm products. The manufacture of oleomargarine in recent years 
has reached an extent which interferes seriously with the sale of 
butter. Adulterated or filled cheese likewise threatens the farmers' 
interest as does the whole series of food adulterations which have 
become so prevalent in late years. The State Granges have at 
various times concentrated their attention upon these problems of 
competition and have aimed to suppress the sale of manufactured 
articles fraudulently labeled in imitation of farm products. The 
managing editor of the journal of one of these bodies writes: "The 
State Grange has done much as an organization toward securing 
and having enforced pure food laws. We have also fought all com- 
promise with benzoate of soda, saccharin, and the like. We do our 
work through personal solicitation, personal letters to legislators, 
memorials and petitions. We build sentiment by having matters 
discussed in our Grange meetings, 1,700 of which are held every 
year, participated in by nearly 100,000 men and women." It is 
not too much to say that the Grange molds a decisive public 
opinion on all the legislative questions in its field. 

The Labor Interests. — The American Federation of Labor, repre- 
senting the great majority of organized labor in the country, is con- 
stantly on the watch to push favorable laws in both national and 
State legislatures. It has a membership of over two million, and 
publishes a monthly journal, The American Federationist. A paid 
president and secretary devote their entire time to the interests of 
the organization. It has also 1,100 organizers stationed throughout 
the country for the purpose of strengthening trade union sentiment 



public opinion 579 

and organizing new unions. The Federation itself unites all the 
leading unions of the country, except the railway brotherhoods, in 
its annual convention. It is therefore pre-eminently well qualified 
to speak for the interests of the organized wage-workers. Typical 
instances of its constant effort to secure favorable public opinion 
and guide legislation are to be seen in such plans as the revision of 
the Sherman Anti-Trust Act in order to exempt from the law all 
labor combinations, so that the unions could legally conduct a 
boycott in interstate commerce. It has also asked a radical change 
in the method of granting injunctions by the courts, and a jury trial 
for persons accused of violating an injunction. 

The methods pursued by the Federation in pushing these claims 
before the public are interesting. The monthly Federationist is 
replete with arguments on all of these points. The various unions 
composing the Federation in their publications also direct attention 
to these problems, the speeches of union officials are well calculated 
to unite the labor interests in these demands and finally, a com- 
mittee on legislation composed of several leaders in the Federal 
executive council has been appointed and has steadfastly brought 
to the attention of legislative committees in the House and Senate 
the demand for a change in the national law on the points men- 
tioned. This committee at first received but scant consideration 
from the Senate and House authorities, but formulated its demands 
in a brief circular and distributed them to all persons who might be 
interested. Still finding its demands unheeded, it approached 
directly and publicly the platform committees of the two national 
parties and in 1908 its demands were accepted by the Democrats 
and partially recognized by the Republicans. The Democratic 
majority in 1914 finally embodied them in the Clayton Act and the 
passage of that law brought to a victorious culmination the nation- 
wide effort to create a favorable popular sentiment. Although the 
progress of other parts of this movement has often been blocked 
both by its friends and enemies, there has been a steady growth of 
public sentiment in favor of the more substantial demands made by 
the Federation and this growth is to be ascribed chiefly to the 
efforts of that body in molding public opinion. 

The Employer. — Another good illustration is seen in the em- 
ployer's attempts to present to the public his arguments against 
changes in the labor laws of the country and to safeguard his 
interests against possible excesses of labor sympathizers and 
against mob violence. An extensive scries of employers' associa- 
tions has been formed for this purpose. Prominent among these 
are the National Metal Trades Association and the National 
Association of Manufacturers. In both of these and other bodies 
the members are frequently addressed from headquarters on 
problems of public policy affecting their interests. In March, 101 1, 
in connection with the opening of Congress a typical letter oi this 
kind was mailed to members by the President of the Manufacturers 



580 THE NEW AMERICAN GOVERNMENT 

Association. After calling attention to the important problems of 
labor which might come up for consideration before Congress, such 
as legislation on the hours of work, the amendment of the Sherman 
Act, the anti-injunction bills, etc., the letter states: 

"The mere enumeration of these possible subjects of legislation 
recalls the matters which have engaged our activities for the past 
eight years. The American Federation of Labor possesses an 
unusual influence with the coming House and declares its determina- 
tion and expectation to secure a favorable consideration of legisla- 
tion hitherto defeated. I need not dwell upon the effect such 
legislation, if passed, would necessarily have not only in the en- 
couragement of disorder in trade disputes, but in stripping person 
and property of essential safeguards, impairing the powers of the 
Federal courts, and providing precedents for further dangerous 
legislation. Moreover, any action taken by Congress or any serious 
agitation of these subjects therein, is likely to be the basis of imita- 
tion in our State legislatures. 

"In view of these possibilities, which I believe you will agree I do 
not overstate, will you not make it a point: 

" 1. To personally see your representative in Congress and if you 
cannot personally see him, impress him immediately, especially if 
he be a Democrat, with the importance and necessity of exerting 
his influence to secure the appointment upon such committees 
as that of Labor and the Judiciary of fair men, and thus lessen the 
likelihood of the appointment, especially as chairmen of such com- 
mittees, of members likely to represent organized labor and do its 
bidding. 

"2. Please request other business men of your district to take 
like action, in person or by letter. 

"3. Direct a note on these lines to any Democratic member of 
your Ways and Means Committee who is likely to be impressed by 
your communication." 

The association above mentioned has for many years been a 
means of solidifying and strengthening the sentiment of unity 
among the employers and although it has necessarily aroused some 
antagonism from the labor union ranks in the course of its activity, 
it must be recognized as one of the important factors in molding and 
expressing public opinion in its field and in influencing government 
action. There is also need for a general employers' association 
combining all industries. 

Improvement of the Public Service. — Let us next take an ex- 
ample from the field of public administration, — the civil service idea. 
Shortly after the Civil War public attention was attracted to the 
urgent need of a reorganization of the national service on more modern 
lines. A number of progressive citizens of Boston and New York 
established local civil service reform associations in those cities. 
These bodies began to discuss the best methods of making civil 
appointments and to attract public attention. They studied the 



PUBLIC OPINION 581 

problem of appointment with great care and drew up a new plan 
based on the merit principle. They were laughed at as dreamers 
and "mugwumps." But other associations were formed in various 
cities and these soon united in a National Civil Service Reform 
League which continued the agitation of this important governmental 
problem until the newspapers and magazines of the country were 
one by one interested and drawn into the discussion. In a few years 
most of the thinking people of the nation were being educated on 
the subject and were expressing their views in unmistakable terms. 
The League drew up a bill which was presented by a member of 
Congress favorable to the new plan and all the local associations 
urged their Congressmen to support the measure. When in 1883 
the pressure finally became irresistible, the Act was passed. Public 
opinion had been formed and had triumphed. Such is the history 
of the United States Civil Service Act. Equally interesting is the 
work of the various Child Labor Committees in all the industrial 
States of the Union. The blighting effects of Child Labor in our 
factories and workshops have been seen for years, but it was not 
until the National Child Labor Committee, in co-operation with 
the Committees in each State began to bring strong pressure to 
bear upon the States and National Government and upon the public, 
that the question received the attention which it deserved. Public 
opinion was crystallized and every manufacturing State in the Union 
has now passed or is considering the passage of a law prohibiting the 
labor of children under fourteen in mills and factories. 

Molding Opinion on the Currency. — After the panic of 1907 there 
was a general demand that the currency of the country be established 
on a more elastic basis. It was especially desired to provide an abun- 
dant supply in cases of financial stringency. In order to secure 
such an improved plan Congress established the National Monetary 
Commission in 1909. Under the chairmanship of former Senator 
Aldrich this body immediately studied all the most effective cur- 
rency systems of foreign countries, and with expert advice formed 
a plan whose main feature was a concentration of banking or credit 
resources, so that all the local banking associations could be fur- 
nished with sufficient funds, in time oi emergency, to tide over the 
monetary stringency and thereby render the whole credit system 
more elastic. The adoption of such a feature appeared to be an al- 
most impossible feat in loooand [910 because of the deep-rooted pop- 
ular suspicion against Wall Street influences, and against any concen- 
tration of banking resources which might fall under those influences. 
The people believed and with reason that speculators were able to 

obtain the money oi the banks for gambling purposes, largely beeuuso 

of the centralization of credit In New York and the favor shown by 

large banking interests to the speculative element. They therefore 

suspected that any central bank system which involved a further 
concentration would naturally aggravate the evils oi speculation 
and oi Wall Street control over the country's funds. The problem 



582 THE NEW AMERICAN GOVERNMENT 

which confronted the Monetary Commission was therefore to over- 
come these obstacles and to win over the influential public opinion 
of the nation by the gradual but thorough process of convincing the 
business interests of the country both large and small. The com- 
mission employed men of persuasive ability. Its own members 
journeyed forth on missionary tours over the continent. They visited 
the American Bankers Association, the State associations of bankers, 
clearing houses, boards of trade, commercial clubs, manufacturers' 
associations, farmers' institutes, and systematically presented the 
main features of their plan and the reasons which justified it. At 
the outset the country was united in opposition but before many 
months had passed the bankers and other bodies of business men 
began to realize the important advantages offered by the proposed 
system, and the methodical work commenced to show results. 

At the suggestion of members of the Commission the president 
of the National Board of Trade called a meeting of financial repre- 
sentatives from all parts of the country. The chairman of the meet- 
ing was authorized to appoint an Organization Committee which 
should (a) carry on a campaign of education; (b) influence the action 
of senators and congressmen. The Committee met in Chicago and 
appointed a special campaign or executive committee with repre- 
sentatives in every State. These representatives were not selected 
from the bankers but chiefly from among the other business men 
of the country, manufacturers, merchants, railway executives, etc. 
They also formed the National Citizens League which had as its 
purpose the holding of meetings and the dissemination of literature, 
circulars, etc., all describing the plan for a central banking associa- 
tion. The League sent free to its many members a monthly bulle- 
tin, "Currency Reform," containing a series of popular arguments 
for a central bank reserve. It also set forth the progress of the move- 
ment and encouraged its members to missionary zeal. The fund 
contributed by banks, trust companies and other sources to this 
body was a large one and enabled a systematic and general agitation 
of the subject. That the work so undertaken bore fruit may be 
inferred from the fact that when the League's labors were completed 
a majority of the bankers and very many business executives favored 
the proposed plan, and although the new Bank Act of 1914 differs 
widely in matters of organization, its main feature and greatest 
advantage is conceded to be the concentration of credit resources 
under the control of the National Government. 

Methods of Securing Legislation. — The most favorable time for 
an association to secure national legislation is in the long session 
which, as we have seen, is the first session, or that commencing 
on the first Monday of December in the odd years. At the short 
session there is little or no time for general legislation, since the 
House of Representatives goes out of office on the following 4th 
of March. Since Congress does little in December because of the 
Christmas holidays, there remain only two months for actual work 



PUBLIC OPINION 583 

in the short session. This time is fully taken up by the large ap- 
propriation bills for the executive departments, and in the com- 
pletion of left-over, unfinished business. Those who are seeking 
the passage of new measures therefore have their bills introduced 
and pressed at the long session. In the State legislature there 
is only one session. 

The attitude of the Senators and Representatives from the associ- 
ation's sections of the country deserves mention. Any Congress- 
man or legislator will introduce almost any bill on request of one 
of his constituents, but if he does not care to push it actively, he 
readily avoids responsibility for the measure by saying that it is 
presented "by request." Thousands of measures are annually 
introduced with this fatal tag attached, fatal because no one takes 
any further interest in a bill so labelled. As we have seen in a 
previous chapter the chances are all against the passage or even 
the consideration of any measure which is not pressed by some 
strong influences in the electorate. The association's next step is 
to secure the services of a "legislative agent." Public sentiment 
against the lobbyist has always been strongly hostile because of the 
secret and often nefarious methods employed by him. Some 
States have even prohibited "lobbying," as it is called, in their 
legislative halls, but more recently the tendency is to regulate the 
practice and surround it with certain safeguards of public regis- 
tration. The legislative agent is usually a lawyer and often a 
former member of Congress or of the legislature who is therefore 
familiar with its procedure, and with many of the leading personali- 
ties on the floor. The rules permit former members to enter the 
hall and confer with the members. The bill, having been intro- 
duced by some friendly legislator, under the direction of the agent, 
is then referred to committee. This committee would ordinarily 
allow the bill to die without further consideration, because the 
members are all interested in measures of their own or in some 
important political bill which affects the success of their party. 
They have little time nor disposition to consider other matters. 
At this point, the services of the legislative agent become invaluable. 
He sees influential leaders, the principal members of the committee, 
and tries to secure a hearing for the friends of the bill. If he can 
persuade the committeemen to do so, a date is set and the persons 
interested in the measure then appear. There are grave dangers 
for the bill at this hearing, the most important o\ which is that its 
own friends will kill its chances by talking too much, by answering 
questions indiscreetly and by giving conflicting views at the 
hearing. The legislative agent must select with great care the 
witnesses who are to appear, and he must see to it that each witness 
gives his testimony in condensed form. Simple as this may seem, 
it is one of the hardest tasks confronting the lobbyist. The average 
business man appearing before a law-making committee is "flus- 
tered." He makes a bad impression, his nervousness and ine\- 



584 THE NEW AMERICAN GOVERNMENT 

perience leading him to talk volubly when he should be cautious 
and to withhold what he considers private information at the wrong 
time. He is easily upset by questions, and unless he is carefully 
primed beforehand and guided with some skill, he is apt to do the 
cause more harm than good. The agent must therefore condense 
and give point to the testimony of each man and also must "mar- 
shal" the evidence or arrange it in logical order so that each 
speaker will tell with cumulative effect upon the minds of the com- 
mitteemen. Questions by the members must be tactfully answered 
and outspoken opposition must be met with diplomacy, a feat 
which is not always possible. 

If the bill passes the committee hearing and receives a favorable 
report, it must next run the gauntlet of the whole House and here 
the parliamentary ability of the agent as a strategist is brought 
into full play. He must see the leading opponents of the bill as 
well as its friends. He must explain away objections, must accept 
amendments, and ward off attacks and postponements until at last 
the measure has been guided over the rough and slippery path of 
the second and third readings and is passed on to the upper House 
where the same general plan of campaign is then followed. From 
this short description of his work, it is clear that the legislative 
agent, if successful, amply earns his fee. His services are as es- 
sential as are those of the attorney in court. It is small wonder 
that many large corporate interests, unwilling to trust their legis- 
lative projects to the whirlpools and rapids of parliamentary un- 
certainty, prefer to make terms with the party leader, which they 
can easily do in the State governments, and have him issue the 
necessary orders for the passage of the desired measures. 

Special Need of Organization. — From what has gone before it 
is clear that public opinion counts only when organized. There may 
be a strong undercurrent of feeling among the people, there may be 
addresses, mass-meetings and parades, — but no public movement 
can win permanent recognition until it is placed on a sound basis 
by some practical organization. Here is one of the chief services 
of the business association or civic society. It gathers, forms and 
brings into coherent, definite shape the tiny particles of public 
sentiment, and by organization renders them lasting and per- 
manent. The many ideas, suggestions and proposals which arise 
from year to year in the politics of the nation are like the millions 
of eggs in a fish roe. Ninety-nine per cent of them have a fleeting 
existence of a few weeks or months at best and then are heard of 
no more. The work of the "club" or "league" in selecting the 
good material from among the useless, in drafting feasible plans, 
in enlisting and holding public interest in these plans and ultimately 
forcing them upon the attention of the government, is an invaluable 
force in our public life. Nor does its service end here. When the 
law is once passed the association must watch over its practical 
enforcement by the executive. The statute book is already crowded 



PUBLIC OPINION 585 

with measures which are so difficult if not impossible of execution 
that the executive must select the laws to be administered. In 
this general competition among laws, those receive the most atten- 
tion which are backed by the force of an expressed public opinion. 
The business or civic association makes this opinion felt. If the 
laws on health, schools or roads are administered with laxity the 
county medical society, the public education association or the 
motor club learns of it and brings pressure to bear upon the State 
executive. And the law is enforced. 

How Civic Associations Set the Pace for Government. — This 
brief description of the work of business and civic bodies shows what 
service they render in making government worth something to the 
people at large. But within recent years they have entered a newer 
field of activity which has now made them an indispensable part 
of our system. Until a short time ago the civic and good govern- 
ment clubs were mainly critical, they pointed out weaknesses 
and defects, inefficiency and dishonesty in government. To-day 
they are positive and constructive, proposing and suggesting plans 
of public action. A criticism or protest is negative, it stirs up 
popular indignation and often leads to an explosion of popular 
wrath in an election, sweeping out of office the majority party and 
all connected with it. But an explosion is destructive, and no suc- 
cessful system of government can be built on indignation. Follow- 
ing the outburst of popular wrath there must come the slow, 
painstaking reconstruction of the political or social system, other- 
wise the old abuses quickly reassert themselves. The permanent 
reform movements of political history have all had this positive 
character. The English Revolution of 1689 destroyed the doctrine 
of the Divine right of kings but put in its place the positive idea 
of government by the Parliament. The American Revolution 
abolished British sovereignty over the Colonies but it was incom- 
plete until it was followed up by the formation of a strong national 
government in 1787. The British Reform Bill of 1S32 not only 
ended the control of the " rotten boroughs" over Parliament, 
but it set up a political control by the middle classes. The de- 
struction of Negro slavery in America was successful only in so far 
as it was followed up by the industrial training and education of 
the Negro. Always there must be this positive element of con- 
structive progress, otherwise a reform becomes a mere paroxysm 
of blind anger. The constructive efforts of our business and civic 
associations, in developing new solutions of public problems and 
proving their practical value, have now assumed prime importance 
in government. Instead of denunciation, the club or League now 
devotes its time to the planning of new measures. By this changed 
attitude the society has gained stronger and more permanent sup- 
port for its plans and a more practical result than it could have 
reached by an appeal to indignation, The strength oi the new 
system lies in its practical appeal and in publicity. When a public 



586 THE NEW AMERICAN GOVERNMENT 

official is now told by an association that its experts have studied 
conditions with care, and have worked out some proposals for im- 
provement, he must either adopt the new proposals or bring out 
another plan. He cannot openly oppose all change. Some idea 
of the strong influence of this factor upon legislation may be formed 
from the following partial list of important public measures or 
policies which have been drawn up and are being urged by private 
business or civic associations: — 

i. In the National government:— 

Internal water ways, 

The Civil Service, 

Restriction of immigration, 

Regulation of interstate and foreign commerce, 

Treatment of Indians, 

Treaties of arbitration, 

Settlement of labor disputes, 

Forestry, 

Irrigation. 

2. In the State government: — 

Revision and enforcement of the tax laws, 

Establishment of new system of public charities, 

Reorganization of prisons, 

Forestry protection, 

Road improvement, 

Improvements in school administration, 

Health protection, 

Restriction of child labor, 

Regulation of liquor licenses, 

Inspection of foods. 

3. In the municipal government: — 
Parkways, boulevards and park areas, 
Recreation grounds, 
Reorganization of city school systems, 
Medical inspection of schools, 

Manual training methods, nature study in the schools, 

Extension of library systems, 

Reorganization of the tax laws, 

Adoption of business methods in the granting of franchises and 
in the award of contracts, 

Suppression of grosser forms of gambling and vice, 

Establishment of modern accounting methods. 

Experimental Work. — In some of the larger cities, societies have 
not confined themselves to the simple proposal of plans for govern- 
ment action but have placed these plans in actual operation with 
the aid of private funds, have demonstrated the feasibility of the 
proposed improvements and have then turned over the material, 
plant and experience thus gained to the municipal authorities. 

Our public baths, playgrounds, vacation, sewing, singing and 



PUBLIC OPINION 587 

cooking schools, our investigations of the proper method of treat- 
ing tuberculosis and some of the most valuable phases of social 
work, are all examples of private experiments which first demon- 
strated their ability to produce results and were then handed over 
to the city government. Such private associations have undeniably 
"set the pace" for our public machinery, and in doing so have 
opened up a new method of work whose value is hard to overesti- 
mate. This activity is not a simple expression of public opinion; 
it is a demonstration of what can be done and what should be done 
by our governments to improve the individual welfare. 

The besetting sin of modern governments is a constant tendency 
towards the stagnation of routine work — the hostility to new ideas. 
At this point the experimental activity of the private association 
steps in to show what is and what is not feasible. This experi- 
mental activity is yet in a most primitive stage. Its possibilities 
are not clear even to those who have done most to further its 
growth. Independent experiments and investigations supported 
and conducted by private societies may be undertaken in nearly 
all the new fields of work now devolving upon public government. 
The strongest obstacles to progress are the official "dry-rot" just 
described, and a widespread popular disbelief in the possibility 
of improvements. But if it can be shown by actual demonstration 
that the government can be made more useful and helpful, and if 
private means are devoted to a series of experiments to discover the 
best methods of administration, these obstacles are removed. 1 

The Democracy of the Newer Methods. — One serious danger 
threatens the public utility of the work just described. Many 
civic societies are unintentionally aristocratic in character and 
methods. They do not reach out to include all classes of the people 
in their membership. Composed of the more advanced and edu- 
cated classes and acquainted with the latest developments of science 
and the useful arts, they sometimes demand public policies which 
are not fully understood by the majority of the voters. In such 
cases the society or club may be unquestionably right as to the 
benefits from its proposed measures, but it makes the mistake of 
taking for granted a popular support and sympathy for such 
measures. Such support must be created by the efforts of the so- 
ciety itself. 

No amount of temporary good government can compensate for 
the decline of an active public opinion among the masses oi the 
people. From the ousting of the Tweed Ring in New York by a 
Citizens Committee and the Philadelphia Gas Ring by the Com- 
mittee of One Hundred, down to the most recent events in city 

1 Until very late years our progressive philanthropists have given their money 
for simple "charity" but recent gifts show a broader grasp of the situation, and 
new ideas are being worked out in sneh widely separated fields as technical 
education, workingmen's dwellings, transportation, the diffusion oi new immi- 
gration, city planning, public sanitation, etc. 



KSSMBOBS 



588 THE NEW AMERICAN GOVERNMENT 

politics, numberless instances might be cited in which private 
committees and associations of undoubted popularity and strength 
have gradually lost public sympathy by failing to carry on a con- 
tinuous educational campaign. This fact is all the more surprising 
because in all other fields the value of advertising is clearly seen. 
The civic society too often secures a good department of charities 
or an honest award of franchises or a model health department and 
then considers that it has done all that is necessary to enlist popular 
support. But what would we say of the manufacturer who should 
produce the best goods but neglect to advertise them? The people 
like good government but they are busy about other things, their 
attention must be drawn to the practical results gained and the 
desirability of new measures. Advertising is a form of education, 
good government must be advertised, — the business or civic society 
must therefore conduct an advertising campaign. Nor can this 
process of education be left until two months before the election. 
No manufacturer or merchant delays advertising his wares until 
his customer prepares to purchase. In business vast sums are now 
spent in advertising to develop new wants and to suggest new 
ideas to those who have no notion of buying. Similarly the civic 
society, to achieve a substantial or permanent result must devote a 
large part of its energies to the process of educating and interesting 
the people in civic improvements. When such a society regards its 
work to be wholly or even principally the righting of a particular 
abuse, the dismissal of a particular official, the election or defeat of 
a certain candidate for office, or the passage of a much desired 
law, it has mistaken the very nature of democratic government 
under American conditions. The result is a temporary improve- 
ment followed by a discouraging relapse. All of the most successful 
associations are now following the advertising policy, and are 
pursuing accepted commercial methods. 

How the Business Association Helps the Executive. — Short as 
is the above summary of the work of private associations and 
societies it suggests how completely the practical methods of 
influencing government action have now changed. Until the most 
recent years it has been customary to influence such action by 
quiet " understandings " and "arrangements" between business 
interests and organization leaders of the majority party. A heavy 
contribution to the campaign fund, or some other service of a 
financial nature entitled the donors to considerate treatment in 
legislation. Much has been spoken and written against this " Sys- 
tem." In justice it must be remembered that for many industries 
it seemed the only way out, while for others it was a purely defen- 
sive, protective measure grasped at as a straw by a drowning 
man. Often it is used by politicians as a means of extorting party 
revenues from the business community, but whatever its advan- 
tages and disadvantages it no longer satisfies either the moral sense 
of the community or the general desire for greater publicity, and it 



PUBLIC OPINION 589 

is being abandoned. Nearly every great industry of the country is 
now coming directly before the people and seeking their approval 
and support in its relations with the government. In giving up the 
old fashioned political deal with the majority party, and in seeking 
to cultivate a favorable feeling among the people, the modern 
business enterprise has forced government questions more into the 
open daylight and has greatly strengthened the influence of the 
executive in legislative affairs. He need no longer depend solely 
upon his party organization as the thermometer of popular feeling, 
but he enjoys a growing freedom to reach over the heads of the 
party leaders and go direct to the people themselves, relying upon 
the work which has already been done by private associations to 
form, stimulate, guide and express popular sentiment. Whenever 
the President, the Governor or the Mayor finds himself fettered and 
obstructed by secret influences within his own party he also finds 
that his main reliance in appealing for popular support, is the activ- 
ity of some business or civic league. These bodies now wield a 
power of unlimited possibilities for usefulness. 

The Manufacture of Public Opinion. — No public opinion en- 
dures unless it is organized, but this by no means implies that 
public opinion can be manufactured by a simple process of organiza- 
tion. Many energetic advocates of some "Cause" make this mis- 
take. Seeing the successful results of strong and influential "ma- 
chinery" directed along effective lines, these persons fondly imagine 
that by establishing a new Society or League, electing officers, and 
inviting the public to membership, they can then turn on the print- 
ing press, grind out a few thousand petitions and resolutions to be 
signed and circulated through the mails by wholesale, and ulti- 
mately foist these upon the legislator or congressman as genuine 
expressions of a profound and widespread public opinion. It would 
be invidious to mention by name associations of this sort but the 
country is honeycombed with such bodies. They are usually com- 
posed of a nominal membership, with figurehead officers, and an 
uninterested executive council of "prominent citizens." The chief 
assets of such paper organizations are usually a paid secretary, a 
typewriter, a large supply of postage stamps and the use oi the 
mails. Such investigation as has been made seems to show that 
they are fruitless unless they represent some genuine popular feel- 
ing. The Washington correspondent of a great metropolitan daily 
has well said "There is little use to attempt to mold public senti- 
ment unless there is a. real demand for something." Says a member 
of Congress: "The mails are loaded down with prepared postal 
cards and circulars, protesting against this or demanding that, 
which are sent to citizens throughout the country with the request 

that they sign them and forward them to Washington. Frequently 
a member of Congress first learns oi a movement to manufacture 
public opinion by receiving hundreds or even thousands oi such 
postal cards and circulars signed presumably by his constituents] 



590 THE NEW AMERICAN GOVERNMENT 

but in many instances signed without reading or at least, without 
consideration, merely because a request has been made that they 
sign them. The great public are apt to comply with a request to 
sign a petition, especially if the request is made in writing and costs 
nothing." From all the evidence we must conclude that the work 
of an association is not so much to create an artificial sentiment 
which does not exist, as to educate, make definite, pointed and 
effective those beliefs and opinions and desires of the people which 
have a solid basis in business or social advancement. 

REFERENCES 

Bryce: American Commonwealth, 1910 Edition, Vol. 2, Chapters LXXVI to 
LXXXVII. 

F. A. Cleveland: Organized Democracy. 

Currency Reform: A Bulletin issued by the National Citizens' League. 
The American Federationist: Issued by the American Federation of Labor. 
Publications of the New York or Philadelphia Bureau of Municipal Research. 
Bulletin of the National Association of Wool' Manufacturers. 
Proceedings, National Civil Service Reform League. 

Bulletins and Publications of the Short Ballot Organization, 383 Fourth Ave., 
New York City. 

QUESTIONS 

1. You are explaining to a foreigner the relation between public opinion 
and Federal laws, presidential orders and acts and court decisions. Summarize 
your explanation and give examples. 

2. Which do you consider the two most important means of influencing 
public sentiment in this country? Illustrate by a case known to you. 

3. What are your impressions as to the chief political characteristics of the 
Teuton as contrasted with other race types? 

4. Prepare a report or summary of the constitution, by-laws, purposes and 
results of some association of business men. 

5. Of some society to promote social progress. 

6. Of some organization for the improvement of government. 

7. Outline and explain the growth of the civil service idea into a national 
law. 

8. Explain fully how the woolen schedule of the National Tariff Act has 
usually been kept at such a high level. 

9. What has the farmer done to strengthen his influence on legislation? 

10. The workingman? 

11. The employer? 

12. How was popular opposition to a concentration of banking control 
modified before the passage of the Act of 19 13? 

1 3 . Prepare a report on the methods of organizing and conducting the woman 
suffrage movement in any State. 

14. Explain how business and civic associations make use of expert service 
in their affairs and give examples. 

15. What are your impressions as to the exact advantages of this plan? 

16. If the roads in your section of the State were in very poor condition what 
would be the most feasible method of securing their improvement? 

17. In a city of 500,000 the public school system has not grown along with 
the needs of the community. The funds are not used to advantage, the teachers 
are poorly paid and a large number of children are not enrolled. Also the school 
laws of the State are defective. A number of prominent citizens propose to 
hold a series of indignation meetings and accuse the school officials of incom- 
petence and graft. What would be your suggestion? Outline fully a plan of 
action. / 



PUBLIC OPINION 591 

18. Summarize the main points of your speech at a meeting, showing the 
reasons for your proposal. 

19. In a discussion on politics the argument is advanced that it is better for 
the business man to attend to his business and allow politics to be managed by 
politicians. You desire to show in answer, that the politicians promote the 
general welfare best when they are carefully guided by business and civic 
associations, and to this end business men must take an active part in such 
bodies. Outline your argument with illustrations. 

20. In a large city there is some demand for the teaching of cooking and 
sewing in the girls' schools but the authorities claim that neither of these sub- 
jects can be taught by class work. How would you put the plan through? 

21. In a modern industrial community a millionaire has let it be known that 
he will devote a certain sum of money to some public-spirited enterprise. A 
number of persons are about to call upon him asking for funds to endow a soup 
society. You are chosen to present to him the claims of the civic club which 
wishes to establish an experimental plan of technical education which, if it 
succeeds, will be turned over to the city. You arrive after the soup society 
advocates have made their plea. Present your case. 

22. The civic club of your city is run by a few public-spirited citizens of 
intelligence and patriotism. Its membership is 100. It has a complete and 
well-planned program of city improvements which it desires to urge upon the 
city government. At the annual meeting it is proposed that all the members 
visit the city officials and insist upon the adoption of this program. This is the 
only provision made for its execution. Summarize your speech on further 
measures. 

23. What are your impressions as to the possibilities and advantages of 
greater publicity in government through business and civic associations? 

24. Write to your congressman or representatives in the State legislature 
and ascertain from them their impressions as to attempts to manufacture 
public opinion by mechanical methods. Prepare a short essay showing a suc- 
cessful and intelligent system of molding opinion as used by some association 
and contrast it with some plan of manufacturing sentiment which does not exist. 

25. You are engaged in a business which is subject to national legislation. 
It is proposed to change the laws governing your industry in a way which would 
injure your interests, and you wish to offset this by securing the passage of a 
different law. Prepare a full, complete statement of the various steps to be 
taken in order to realize your purpose, with the reasons for each. 



CHAPTER XXVIII 
THE CIVIL SERVICE 

The Problem. — The real civil service question is — how to secure 
and hold an efficient staff of government workers, in all positions, 
in other words, how to make the service a career for men of con- 
spicuous ability. Thus far we have only scratched at the outside of 
this problem with our civil service laws, and we have yet to face the 
substantial issue involved which is to create a new profession of 
the highest usefulness and patriotism. This includes: The present 
efforts to free the lower clerical force from the blight of oppressive 
partisanship, by entrance requirements, and by rules protecting 
admission to and dismissal from clerical employment; 

The establishment of effective service records by which promo- 
tions may be made on the basis of merit rather than upon the 
paralyzing principle of mere length of service alone; 

The complete abandonment of the present policy of making 
heads of offices, division and bureau chiefs, political appointments; 
The extension of the merit principle to these posts, the opening up 
of opportunity for "employes" to be promoted to " officials" and 
the stirring up of ambition among the hundreds of thousands of 
clerks who at present have little or no incentive to do more than a 
minimum of work sufficient " to hold their jobs;" 

The adoption of a moderate pension system which will at least 
assure to those who have served the government faithfully and 
well, that they will be taken care of when incapacitated; 

The complete readjustment of salaries in the technical and inter- 
mediate positions, to afford a more reasonable return to those who 
carry the real burden of public work; 

Finally, but not least, the education of all classes of the public to 
see in the public service not "a plum" but a business organization. 
Such a viewpoint does not become an important or popular one 
until the work of the government itself is important. 

The Transition from the Spoils to the Merit System. — As long 
as government activity did not closely touch the people at large, 
there was no interest taken in the formation of a strong, well 
organized civil service. The old maxim " to the victors belong the 
spoils" meant that with each change of party control the entire 
national government service must be reorganized with a new staff 
in order to find places for the victorious party workers. This plan, 
known as the spoils system, was introduced by Andrew Jackson in 
1829 and from that time until 1883 the Federal service was sub- 
jected nearly every four years to a paralyzing convulsion called a 

592. 



THE CIVIL SERVICE 593 

" cleanout." Since a public office was a chance to reap a good salary 
with little work, it ought not to be monopolized by a few; in a 
democratic country the offices ought to be passed around, — "rota- 
tion in office" was the policy. It mattered little which party won, 
there must always be a sweeping change in the appointed offices to 
make room for a new set of men. Furthermore each new body of 
office-holders was chosen as a reward for political efforts, not for 
business ability; accordingly the standard of government efficiency 
was low, embezzlement frequent and the public service became a 
by- word for incompetence. This was the situation when thirty 
years ago the growing powers of the government began to suggest 
the need that the official service be placed on a business basis. The 
result of that belief is the "merit system." Its central idea is that 
appointments should be made according to ability, the less able and 
the less desirable applicants should be weeded out by an examina- 
tion. At first the new idea was hailed as the cleanser of the Augean 
stables of politics; such expectations could not possibly be fulfilled. 
But as the claims of its advocates have become less extravagant a 
more abiding faith in the system has been aroused. After many 
unsuccessful efforts to establish a practical method, the present 
national law was passed and approved on January 16, 1883. Since 
that date the movement has been making gradual headway and 
is now in force in several State and city governments. In its report 
for 191 2 the national commission says: 

"Of the whole number of public employes in the United States — 
Federal, State, county, municipal and village — not far from 600,000, 
or nearly two-thirds of the entire number, are withdrawn from the 
spoils system and appointed upon a merit basis, under laws intended 
to regulate and improve the public service." The number of State 
positions is still comparatively small, but in the Nation and the 
municipalities there is a wide scope for the operation of the merit 
principle. 

Obstacles to the Merit System. — The greatest obstacle to the 
universal adoption of the merit principle is the need of rewarding 
those who bear the burden and heat of the day in party work. As 
long as a large proportion of the voters must be persuaded to per- 
form their duty there must always be some group oi men in every 
locality who will form the nucleus of a party organization, and who 
will do the detailed work of party management ami "getting out 
the vote." These men may be temporary volunteers working from 
patriotism, or they may be regulars, pursuing politics as a permanent 
calling. The latter arc (he more efficient. The atom oi all party 
molecules is the division or precinct worker, There are from two 
to a half dozen oi these to every polling place. The more important 
workers are placed upon a committee which governs the party or- 
ganization in the ward or district. The district or ward '"leader" 
is elected to a city committee, which controls the entire local organi- 
zation. The leaders and the members oi the various committees 



594 THE NE W AMERICAN GOVERNMENT 

include all the important party workers in the city. Each of these 
party workers occupies a public office in the local or National Govern- 
ment, with a salary proportioned to his importance in the party. 
This proportion between political work and public office is shown 
in the following list taken from a large city: — 

Party Office Public Office and Salary 

Precinct or division workers Janitors, watchmen, messengers; 

$6oo-$i,ooo. 
Precinct or division leaders Clerks, inspectors of street cleaning, 

etc., $8oo-$2,ooo. 
District (or ward) workers and Clerks, bureau chiefs and heads of 

leaders departments; $2,ooo~$6,ooo. 

The district leaders also have various sources of gain besides their 
official salaries. Undoubtedly all these party workers perform a 
public service for which they should be paid. But how, and how 
much? The kind of ability required of political workers is in de- 
mand everywhere and most of them would undoubtedly succeed 
better in business than they do in politics if they devoted the same 
amount of time and energy. While the official salaries of politicians 
seem high, a large portion is taken out in party and club assessments. 
The social expenditures of the workers are also heavy, for every 
worker has a host of "friends" and dependents, whom he must help. 
There is also the precarious nature of his employment which is ag- 
gravated by factional warfare within his own party, threatening to 
displace him at any moment. It must be remembered too, that 
political work soon destroys a man's fitness for ordinary business 
pursuits and thereby limits his possibilities in case he retires from 
politics. From all these facts it is clear that the average politician 
must somehow be paid a net salary which will be proportionate to 
the kind and amount of work done. The spoils system has flourished 
because it offers a means of paying such a salary. But the cost of 
the system to the community, in the incompetence, inefficiency 
and corruption of the public service, is too great a price to pay for 
the party worker, and it would be even better for the government to 
give a lump sum to each political organization for its expenses than 
to support its workers in public office. It is the necessity of finding 
some adequate means of paying for party services which retards 
the progress of the merit principle. Strong as this obstacle undoubt- 
edly is, it is slowly giving way before the growing desire of the people 
that government work be placed upon the same plane of ability, 
thoroughness and efficiency as other business enterprises. 

The United States Civil Service. — There are in the National Civil 
Service 411,000 positions; 260,000 of these are subject to the Act of 
1883. The Act does not apply to the following class of civil servants: 

1. Those appointed by the President with the consent of the 
Senate, 



THE CIVIL SERVICE 595 

2. Laborers. 

3. Those positions which the President desires to "exempt" from 
the Act because of their special duties or because applicants cannot 
be properly tested by examination. Formerly these exempted places 
were dangerously numerous, but President Roosevelt on the recom- 
mendation of the Civil Service Commission reduced them to a safer 
limit by a rule adopted April 15, 1903. President Taft added many 
other positions to the classified list. 

The law provides a simple and effective method of enforcing the 
merit system; a civil service commission of three members is ap- 
pointed by the President with the consent of the Senate. It watches 
over the entire field of civil service appointments, dismissals and 
promotions. With the President's approval the commission makes 
rules classifying the various positions according to salaries and 
duties, and providing an examination for each class. Other subjects 
governed by the rules are, the conduct of examinations, the keeping 
of service records, showing the results secured by each employe, 
and the prevention of party taxes, or "assessments" on the salaries 
of office-holders. These party assessments were formerly a serious 
drain upon the resources of all civil service employes. The con- 
gressional campaign committee once levied a tax of 2% on the 
salaries of all office-holders in the Federal service, and sent requests 
for these amounts to every employe including janitors and scrub- 
women employed in Federal office buildings. The practice still 
persists in city and State positions. 

How Appointments are Made. — The various positions in each 
department having been properly classified, as already explained, 
an annual examination for each class of positions where vacancies 
exist is held under the direction of the civil service commission. 
The candidates who pass the examination with a certain required 
average are placed upon a list of eligibles in the order of their 
averages. When a vacancy occurs, for example, in the office of a 
clerk at twelve hundred dollars per year, the appointing officer 
notifies the commission of the vacancy and asks for eligible appli- 
cants. The commission certifies to the appointing officer the three 
names standing highest upon the list of eligibles for that class of 
position. From these the selection is made and a six-months period 
of probation is allowed; at the end of that time the appointment is 
either made permanent or another set of three names is certified. 
To direct its examinations the commission employs a chief examiner 
and appoints examining boards in all the large centers oi popula- 
tion. The law prohibits the appointment to the classified service of 
persons habitually using intoxicating beverages to excess, the 
appointment of more than two members of the same family, the 
recommendation?" of applicants for office by Senators or Representa- 
tives, and any solicitation, receipt of gifts or moneys for political 
purposes by Government employes to or from each other or to or 
from Senators or Representatives. Preparation for the examina- 



59^ THE NEW AMERICAN GOVERNMENT 

tions frequently takes place in Washington, D. C, where a number 
of tutors have established special courses, coaching prospective 
applicants. For the higher grades of the service, notably the 
consular and diplomatic positions, a few of the large Universities 
in their schools of commerce, offer appropriate courses. There is 
not as yet any desire on the part of the people for a government 
civil service school and experiments which have been made in other 
countries towards this end have not been so successful as to en- 
courage such a school here, nor is it necessary, in view of the great 
abundance and variety of courses offered in political science and 
similar subjects by the colleges and universities. 

Promotion. — The highest positions in the departments, being 
political, are not filled by promotion. In America we even carry 
this practice to the extreme of making the chiefs of bureaus and of 
divisions, partisan "jobs" for outsiders, greatly to the harm of the 
service. For this reason the only permanent backbone of the 
personnel consists of very subordinate positions, mostly from the 
rank of chief clerk downward. How shall promotions be arranged 
in such a way as to secure the advancement of the best fitted? 
There must be some fixed plan, yet such a plan is not easily devised. 
Length of service is not satisfactory; it begets a purely routine 
habit of mind which is the curse of all government work. It is no 
more feasible in public than in private employment. In the posi- 
tions where originality, discretion and judgment are necessary, the 
most efficient must be advanced regardless of age or length of 
service. Our great commercial corporations are nearly all managed 
by men who have been promoted over the heads of their older or 
more experienced fellows. The other men may have been much 
higher on the list when measured by length of service; they may 
have been equally punctual in their performance of routine business, 
but they are passed over in the choice of a new head because they 
lack that unrecorded and unrecordable something which we call 
initiative and which distinguishes the better man for manager or 
directing head. But to make such a departure from the rule of 
seniority, in business, implies the exercise of human judgment by 
those making the choice. Precisely the same condition exists in 
the government service. The appointing officer must use his 
judgment freely in making promotions to all important places; he 
cannot be bound by length of service nor by any ordinary routine 
tests. Examinations for promotion in the upper branches of the 
service are for this reason useful only in a limited way. As the com- 
mission points out in its 19th annual report, " examination for 
promotion must be confined to subjects which do not test the execu- 
tive or administrative qualifications required in the position for 
which the examination is taken. If such administrative qualifica- 
tions predominate (in a position), a competitive examination is 
useless, because those qualifications are developed by experience 
and are best known to the appointing or promoting officer." In the 



THE CIVIL SERVICE 597 

purely clerical positions, however, such examinations are thoroughly 
practical, and they even may be used in promotions to posts re- 
quiring technical knowledge, since such knowledge can be tested by 
examination. 

In making promotions to a different grade as well as a different 
salary, inequalities in payment for the same service often arise. 
Because of this difficulty the Commission has provided in Rule XI 
simply that " Competitive tests or examinations shall, as far as 
practical and useful, be established to test fitness for promotion in 
the classified service," but has left the character of the test to the 
promoting officer. The most satisfactory system of examinations 
thus far obtained has been established in the Railway Mail Service, 
which includes the employes engaged in the actual transportation 
of mails upon trains and trolley cars and in the sorting and prepara- 
tion of the same while en route. This work requires unusual mental 
quickness, physical vigor, energy and endurance. The force 
numbering about 9,000 has a record of only one mistake in every 
10,000 pieces of mail handled. Periodical examinations are held 
which test the ability and fitness for promotion of each employe. 
These consist for the most part of tests on the names and locations 
of postal stations within the district in which each clerk is employed. 
This branch of the post office department is now considered the 
most efficient in the national service. 

The Service Record. — Of all the plans for measuring fitness for 
promotion, the most promising is the service record, sometimes 
combined with the periodical examination. The record includes 
everything that can be systematically filed on the results of the 
employe's work, — his punctuality and promptness, his health, his 
absences from duty and their causes, his ability to get along with 
other employes, and most important, his ability and rapidity in 
the dispatch of his duties. This latter quality which is after all the 
real test of a man's usefulness and fitness for advancement, has 
never been recorded in many of the departments; — it is often most 
difficult to fix in definite terms, yet its importance is such that the 
Commission on Economy and Efficiency has laid weight upon the 
necessity of dividing all work, even routine matters, into definite 
tasks and keeping some record of them which would be comparable 
to the measurement and accounting of tasks in a factory. The 
service record is still in its infancy and is little more than an effort 
in the right direction but if this new feature can be incorporated in 
it with reasonable accuracy the problem o\ a promotion "system" 
will be solved. 

Removals. — Among the Civil Service rules contemplated by the 
Act of [883 we find "that no person in the public service is for that 
reason under any obligation to contribute to any political fund, or 
to render any political service, and that he will not be removed or 
otherwise prejudiced for refusing to do so." To strengthen and 
extend this prohibition, Section [3 oi the law provides that "No 



598 THE NEW AMERICAN GOVERNMENT 

officer or employe of the United States mentioned in this Act shall 
discharge or promote or degrade, or in any manner change the 
official rank or compensation of any other officer or employe, or 
promise or threaten so to do, for giving or neglecting to make any 
contribution of money or any valuable thing for any political pur- 
pose." There is thus a definite provision against removals for 
failure to pay party taxes or perform party services. In the classi- 
fied service it is also the understanding that no employe will be dis- 
charged for any other political reason. In the unclassified and 
higher positions, however, removals for partisan causes are the rule 
with all parties; so in these posts tenure of office usually runs four 
years or to the next party reverse. Removals are made by the 
appointing officer. 1 

Because the authority to remove is needed for discipline, it can 
only be regulated with the greatest difficulty. Somewhere between 
the two extremes represented by the Jacksonian method of dis- 
missal "to make room" for political friends, and the German plan 
of requiring a formal trial by a disciplinary court with the produc- 
tion of written and oral testimony, etc., — there is a desirable middle 
course suited to our present conditions. Many enemies of the 
civil service system point sarcastically to the slothful spirit which 
they claim is engendered by the safeguards against removal. It was 
once said of the clerks and employes of New York city that they 
were more familiar with their rights under civil service law than 
with their duties to the public. In any organization whether it be 
religious, commercial, or governmental, a permanent, secure tenure 
is apt to breed sluggishness unless offset by some incentive to effort. 
But in our government the sloth and inefficiency which undoubtedly 
do exist in several of the departments at Washington, are in no 
way due to freedom from political discharges. On the contrary this 
inefficiency was far worse before the Civil Service Act was adopted; 
it was a common practice to neglect official work entirely before 
election day, as it is now in political offices. Furthermore, since 
1903 there has been no hindrance to the removal of any employe 
for good reasons. The rules as then amended provide that "No 
person shall be removed from a competitive position, except for 
such cause as will promote the efficiency of the service and for 
reasons given in writing . . . but no examination of witnesses 
nor any trial or hearing shall be required except in the discretion of 
the officer making the removal." (Rule 12, in effect from April 15, 
1903.) This rule places no obstacle whatever in the way of the 
removal of an inefficient, a lazy or an unsatisfactory employe, so 

1 During the long quarrel between Congress and President Johnson in the era 
of Reconstruction, it was sought to cripple the President by an unwise law 
providing that officials for whose appointment Senatorial approval was required, 
could not be removed without the consent of the Senate. This law, passed in a 
spirit of party vindictiveness, has since been repealed and at the present time 
the Executive removes his subordinates without let or hindrance from the 
Senate. 



THE CIVIL SERVICE 599 

Iv^ng as such removal will promote the efficiency of the service. The 
real causes of departmental inefficiency are the absence of practical 
service records as we have already noticed, and the appointment of 
all important officials above the grade of chief clerk upon a purely 
partisan basis. 

If our civil service in America is to enlist the activities of the 
ambitious and well-trained men of the nation, we must not only 
Day much greater salaries than at present but we must also offer 
a career independent of partisan influence in the higher positions. 
It is hardly likely that valuable men will care to enter the public 
service while such uncertainty of tenure exists. This applies not 
to the clerks, stenographers, technical employe and chief clerks 
under the civil service rules but to those heads of offices, divisions 
and bureaus who are not protected. An important step in this direc- 
tion was made when the post office adopted the policy of retaining 
fourth-class postmasters until a definite cause for removal was 
shown. Previously they had been asked to resign at the end of a 
four-year term or with the change of administration, but the new 
policy had the effect of giving them, as the law contemplated, an 
indefinite term, that is, during efficiency and good behavior. A 
similar method should be followed in other important positions to 
the lasting benefit of the public service. 

Practical Results of the Law. — The Civil Service Act has brought 
about such a strong improvement in the public service that no 
President would consider a return to old conditions. Some of the 
departments have large numbers of employes chosen for efficiency 
and retained in office regardless of their political opinions, forming 
an admirable staff of subordinates who deserve high praise, and 
compare in intelligence, ability, and faithfulness to officials of 
similar rank in any country. The system has been criticized on the 
following points: — The Act gives the President the entire control 
of the Commission, allows him to approve or reject its rules and to 
exempt any position and offices that he sees fit from the operation 
of the rules. But we must remember that the control of any system 
that could be devised must be placed in the Chief Executive. There 
is no automatic method of appointment which could infallibly 
select the right man without the exercise of human discretion. 
There is only one person whose judgment must ultimately decide 
and that is the responsible executive official. A similar objection 
has been raised, that the merit plan is too mechanical because it 
lays too much weight on examinations. The best friends of the 
system, including members of the Commission, are quick to declare 
that the results of the examination should always be modified by 
the good judgment of the appointing officer. They willingly admit 
that a purely mechanical plan is by no means the ideal and that a 
man's practical ability to till an office cannot be accurately shown 
by a written examination. In business circles, capacity is judged 
from the employe's past record, but this is extremely difficult in 



600 THE NEW AMERICAN GOVERNMENT 

entrance examinations for the government, because the appointing 
officer cannot compare accurately and in detail all the achieve- 
ments of the various applicants. The Commission has tried to 
overcome these obstacles by basing each applicant's grade or aver- 
age upon three factors; first, his general information and intelligence 
as shown in the examination; second, his special knowledge of 
the subjects covered by his prospective duties; and third, when 
the applicant's past experience can be definitely ascertained, it is 
counted and given a strong influence on the final average. While 
all these points are of value to the appointing officer he must rely 
on his own estimate in the last analysis. A third weakness lies not 
in the law itself but in the concerted attacks of its enemies both in 
and outside of Congress. The lack of sufficient appropriations to 
carry out the national law in the spirit in which it was intended 
has been a serious and at times an almost insuperable obstacle. 
For years it has been the custom of the enemies of the merit prin- 
ciple to make a combined attack upon the Civil Service Commis- 
sion when the appropriation bills were being considered in the 
House of Representatives. This attack was planned in the " Com- 
mittee of the Whole House," because the names of members and 
their votes are not recorded in that Committee. A majority in the 
Committee regularly voted to defeat the appropriation for the 
Commission. Upon the amendment being reported to the full 
House, however, the item for the Commission had to be replaced in 
the bill because the names of those voting "aye" and "no" are 
recorded in the House and frequently published by the newspapers. 
This action, while it does not immediately injure the Commission, 
yet shows the attitude of many members of Congress toward the 
civil service system and explains the small appropriations for the 
execution of the law. The practice of keeping the Commission's 
funds low has prevented it from travelling over the country to 
inspect and supervise the local boards which conduct the examina- 
tions. Many of these have not been visited once since their organ- 
ization. Under such conditions the best administration of the law 
is impossible. Questions have been asked, in tests, which had no 
bearing whatever on the duties of the positions to be filled. In an 
examination for clerks in a mint, some years ago, applicants were 
asked the height above sea-level of the 6 largest cities of the United 
States! The Commission has had to defend its work without super- 
vising its workers, — an unreasonable condition to force on any 
department. It has attempted to remedy the weakness by appoint- 
ing a chief examiner with headquarters and assistants at Washing- 
ton, to prepare all questions under his direct supervision and for- 
ward them to the local boards for use. 

Giving due weight to the criticisms mentioned, we must balance 
against them the almost universal testimony of executive officials 
in favor of the merit principle. There can be no doubt as to its 
benefits. The chief difference between the spoils system and the 



THE CIVIL SERVICE 6oi 

merit plan is not so much that the former placed certain men in 
office but that it failed to keep them there. In the brief descrip- 
tion of party organization above we have seen that the political 
worker is in many cases an intelligent, capable man who might 
do well by keeping out of politics altogether. It cannot be said 
that the spoils plan put the best men in office, nor on the average 
as good men as are now chosen, but it may be maintained that a 
large number of most excellent officials were appointed under the 
old plan; the chief difficulty was that they were never allowed to 
make a record for themselves, but were indiscriminately turned 
out with the change of the political tide. Greater continuity and 
experience are the foundations of the present system. There is 
still needed the opportunity to secure advancement to the higher 
posts in the service and the measurement of this advancement 
by the service record of the aspirant. 

The Civil Service in States and Cities. — Thus far nine States, 
Massachusetts, New York, Wisconsin, California, Colorado, Con- 
necticut, Illinois, Ohio and New Jersey have introduced the merit 
system permanently in their civil service. Massachusetts in 1884 
took the first step, establishing a commission on the same general 
plan as that of the National Government. It was subsequently 
provided that not only appointive State offices but also positions 
in the municipalities and towns of 12,000 inhabitants and over 
should be classified under the rules, in case such municipalities 
formally accepted the law. This acceptance was made entirely 
optional. The Act does not apply to appointments requiring the 
approval of the Governor's council or of the municipal council, 
nor to any elected officers. These latter provisions have had the 
practical effect of restricting the application of the law to clerks, 
stenographers, engineers, school janitors, truant officers and the 
municipal police and fire departments, since all the other and more 
important offices required council approval for appointment. 
This, however, is not to be taken as condemning the system; the 
benefits of the competitive examination plan are undoubtedly 
greatest in the clerical and inferior positions, and these positions 
are by far the most numerous in the public employ. There is no 
valid reason why appointments requiring the approval of the Gov- 
ernor's council or of the municipal council, should be exempted 
from the rules; in fact we have already seen that the approval of 
executive appointments by a legislative body offers no benefits 
to the public service. The historical reasons for giving the council 
such a power of interference have long since disappeared, while the 
disadvantage arising from purely political influence is now clear 
to all. It will hardly be contended by anyone at the present time 
that legislative approval of executive appointments serves any 
real purpose except the division oi offices among members oi the 
legislature. The idea of exempting such positions from examination 
under civil service rules can only spring from the desire to secure 



602 THE NEW AMERICAN GOVERNMENT 

the appointment of particular men designated by the legislators. 
Under the Massachusetts law nearly all the more important cities 
of the State have formally accepted the new system and applied 
the rules. These rules are not issued by city authorities, but by 
the State Commission, a plan which has the greatest advantage 
of taking the administration of the law out of the atmosphere of 
local partisan interests, and secures a more uniform and efficient 
application of the entire plan. Boards of examiners are appointed 
for each city, but they are in all respects subject to the direction 
and control of the general commission. A number of other States 
have adopted the Massachusetts plan and applied the merit prin- 
ciple to their cities. 

The New York law of 1889 provided for a State Commission; the 
law has, however, several characteristic features. In each city 
a commission is appointed by the Mayor to enforce the law by issu- 
ing rules governing the city service. These local commissions are 
removable either by the Mayor or by unanimous vote of the State 
commission, for incompetence, inefficiency, neglect of duty or 
similar causes. In such case the successors are appointed by the 
State commission. The latter is also given power to rescindany rule, 
regulation or classification made by the city commissions, provided 
that such action is taken on the ground that the municipal rules 
and regulations are not suitable for the execution of the State law. 
Disbursing officers are prohibited from paying salaries to persons 
illegally appointed, while employes and officials whose rights 
are injured by violations of the law are given the privilege of a 
writ of mandamus. Taxpayers may also bring action to restrain 
the payment of compensation to any persons appointed in viola- 
tion of the law. Veterans of the army and navy and of the old 
volunteer fire departments may not be removed except for incom- 
petence or misconduct shown by a hearing after due notice, upon 
stated charges and with the right of a judicial review by a writ 
of certiorari. So rapidly has the new system taken root in the cities 
that several commonwealths which have no civil service rules in 
their State government have passed laws allowing their muncipali- 
lities to adopt the merit principle. A great host of cities have al- 
ready done so. 1 

The Illinois System. — The city of Chicago and, following its 
example, the State, have gone farthest in developing efficiency in 
the local service. Chicago created a special efficiency division of 
the local commission. This division made a study of the powers and 
duties of all the offices in municipal departments, the number 
of employes and the assignment of work, the adjustment of salary 
to work, the methods of supervision and the means of measuring 

1 An excellent summary of recent progress is given in the annual reports of the 
U. S. Civil Service Commission. See also the article by Albert S. Faught, in the 
National Municipal Review, April, 1914, "The Civil Service Laws of the United 
States." 



THE CIVIL SERVICE 603 

and recording the quality and quantity of work done by each em- 
ploye and each office. This survey immediately showed great 
inequalities among employes who were doing the same kind of 
work, also considerable waste and duplication of labor, together 
with lack of adequate supervision and responsibility. Each de- 
partment head furnishes to the commission on blank forms pro- 
vided by that body, a report on the attendance, conduct and 
quality of work of each of his supporters. The efficiency division 
makes an immediate investigation of employes with exceptionally 
high or unusually low scores. Two marked advantages of this 
plan have already resulted, — the department head is stimulated 
to more careful supervision of his force and to the removal of in- 
equalities and favoritism in the treatment of employes; and the 
commission itself receives the benefit of a complete knowledge of 
all the departmental work done and is able to adapt its entrance re- 
quirements accordingly. Following the success of the Chicago 
system, the State government in 191 1 enacted a law containing 
among others the following unusual provisions: 

The entire service is placed under the control of the commission. 
The exempted political positions are limited in number. Even 
laborers are selected by competition. The person standing highest 
on the list among the competitors is chosen for the position. He is 
given a probationary period and may be discharged if unsatisfactory 
but it is not necessary for the commission to certify the three 
highest names on the list as in other States. The Commission 
fixes by rule the grade of each position and the highest and lowest 
pay for each grade. As a result, a great number of inequalities in 
payment and work have been removed. The Illinois plan is notable 
in that it does not confine the Civil Service Commission to the mere 
work of conducting examinations and supervising entrance, pro- 
motion and removal rules but enlarges its scope to include what 
every commission should be authorized to do — study, supervise, 
and improve the efficiency of the public service. Several other 
State commissions including those of New York and Wisconsin 
have conceived their work in the same useful spirit. The move- 
ment promises an increase in efficiency which is only limited by 
the reluctance of the legislatures to co-operate. 

Special Problems of the Public Service. — Of the unsolved 
problems in this field the first and greatest is the education of the 
people to regard the public employment as a life career. England, 
Germany, France, Austria and Russia have all created a permanent 
office-holding class to earn- on the executive business of the nation. 
This is by no means a convincing proof that the United States 
should adopt the same policy. Russia is attempting the gigantic 
task of creating a nation, telling it what it shall believe, what it 
shall do, even what it shall want ; she is also making efforts to satisfy 

those wants and at the same time to carry on an extensive policy 

of foreign assimilation; to do this she must needs have a highly 



604 THE NEW AMERICAN GOVERNMENT 

trained, semi-military public service which can be disposed accord- 
ing to best advantage at a moment's notice — an army of civilians. 
England has an immense colonial system which requires her con- 
stant attention and efforts; she cannot afford to dispense with a 
professional service and is indeed obliged to attract her best talent 
into the colonial positions by the offer of high salaries and a secure 
tenure of office. Germany and France are coping with most difficult 
internal problems in the improvement of the condition of their 
laboring classes. All these nations have reached a stage where a 
great and complex public service organization is essential; such an 
organization can only be created by offering an honorable and 
attractive life career to those who enter the State employ. Al- 
though we in the United States have not yet reached the European 
status of internal and foreign problems, we are rapidly approaching 
it. In the world of international politics, we are beginning to take 
our bearings, and our domestic questions are already stirring us 
deeply. The management of dependent territory, the develop- 
ment of trade abroad and the protection of the investor, the con- 
sumer, and the laboring class are the three great educating, broad- 
ening problems which are rapidly bringing us out of the rank of 
young, "provincial" nations to the class of influential world peo- 
ples, with a clearer consciousness of our destiny. Our public service 
must reflect this growth. We do not yet enlist our best talent in 
the government personnel. There are still great business enter- 
prises to be originated for the development of our natural resources, 
combinations of productive force to be made, and entirely new 
plans of commerce, manufacture and agriculture yet to be drawn. 
These still demand and receive the very best business talent of the 
people. It has been only after these fundamental economic plans 
were fairly matured that the governmental questions growing out 
of them could begin to attract the attention of the type of men 
now in the service of corporations. If we scan the list of those who 
have been conspicuously successful in the public service and who 
have shown pre-eminent ability in their respective fields, we find 
that they sooner or later enter the service of great industrial and 
commercial enterprises. Naturally the able men cannot afford 
to remain in the public service. The position of a bureau chief 
or a head of a division, even in the National Government, does not 
as yet compare with that of manager, superintendent, or general 
passenger or freight agent of a railway, either in the attractiveness 
of the work to be done or in the salaries offered. 1 

Once the government enters upon an aggressive foreign policy 
or attacks in earnest our domestic problems, there is no reason to 

1 There are a number of exceptions, notably in the Forestry Service, the 
Reclamation Bureau, Bureau of Corporations, and other parts of the National 
Government, in which the work is so important that a high class man is required. 
In these positions the salaries, $5,ooo-$7,ooo, have not yet been raised to a 
point equal to the importance of the work performed. 



THE CIVIL SERVICE 605 

fear a dearth of the best material to fill the important posts. In 
the lower routine of government work, however, the case has been 
different; the clerks, stenographers, and copyists and less important 
officials in the public employ become fixed in the routine of an 
office and remain indefinitely. While in the higher offices the tend- 
ency is to drift out of the public service, in the lower, the aim is to 
stay in because ambition is soon smothered. Our political condi- 
tions have made the lower service not a career but a trap. Closely 
related to this is the question, what training should be required 
of a government official? In all those countries where the govern- 
ment has become a distinct profession, careful training is prescribed 
for the higher service, sometimes reaching a period of from six to 
eight years. The need of such a plan in the United States must 
be judged largely according to the answer given to the previous 
problem. At present no such requirement exists but when the 
higher civil service here begins to offer a life career the government 
should prescribe a period of thorough preparation as is done in all 
other professions. 

The Civil Pension. — A similar question is presented in the pro- 
posal of a pension for all civil service employes who have been in- 
jured while in the performance of duty, and also for those who have 
served faithfully for a long series of years and have outlived their 
usefulness. For the first class there is every reason to provide a 
reasonable annuity under proper safeguards. The service of the 
National Government, in particular, includes a wonderful diversity 
of occupations, from the sweeping of floors to the construction of 
battleships. Many of these employments are accompanied by 
great danger, as in the railway mail service; if an employe in this 
bureau or in a government navy yard is seriously injured in the 
course of his duties, he is as deserving of relief at the hands of the 
government as is the soldier wounded by an accidental explosion 
in time of peace. Yet the latter is awarded a pension for life. It is 
not a sufficient answer to argue that civil employes are aware of 
the danger of their occupations and voluntarily take upon them- 
selves the attendant risk — so does the soldier, — nor is it reasonable 
to declare that they are at liberty to insure themselves in accident 
companies. The proposal of government pensions for employes 
injured in the course of service rests upon a broad principle which 
is being recognized in all forms of business, both public and private, 
viz., that those who render faithful and efficient service should in 
some way receive special protection from the hardships and loss 
of earning power incurred in the performance oi their duties. For- 
eign governments have long followed this principle in their pension 
systems. Pursuant to this idea the law of May 30, 100S. provides 
that laborers, artisans, etc., employed in certain departments 
tin" government service shall be paid a compensation for disability 
incurred by accident in the service. The amount depends on the 
severity of the accident and the length of time which it lasts. No 



606 THE NEW AMERICAN GOVERNMENT 

person is paid more than the total amount of wages for one year. 
In case of death the payment is niade to the family. This Act 
affects about seventy thousand employes. There are also dis- 
ability payments made to the members of the Life Saving Service 
under the Federal law, but these measures do not apply to the 
clerical positions and the latter are entirely unprotected in case of 
accident in the performance of duty. 

Regarding pension or retirement allowances for those who have 
outlived their usefulness in the public employment, the decision 
is more difficult. It depends largely upon the answer to the funda- 
mental query — shall we make public employment a life career? 
In case of clerks with a permanent tenure of office there is no 
reason why such employes should be any less favorably situated 
than those performing similar work for the great business corpora- 
tions. One by one the more important railway systems and in- 
dustrial concerns are providing retirement and disability pensions 
for their employes. Some of these plans are by no means liberal 
in their terms, 1 but practically all of them involve substantial 
contributions to the pension fund by the employer. These systems 
show that larger numbers of the people are obliged to devote them- 
selves to a limited, salaried occupation in which there is no means 
of support after the earning capacity has been exhausted. Such a 
view should be taken by the nation as a whole no less than by its 
business corporations. In the National Government there are now 
carried on the rolls a large and increasing number of clerks who are 
unfitted, by age, for the active performance of their duties. Com- 
petent observers who are thoroughly familiar with the depart- 
ments at Washington estimate that in the various bureaus located 
at the national capitol, between 10 and 16% of the employes are 
superannuated. Strange as this seems, it is to be accounted for 
by the easy-going, good-natured way in which Americans have 
heretofore regarded the work of their government. We are in 
effect already supporting a pension roll of an expensive character. 2 
For the higher positions of a political tenure, there is of course no 
necessity for a retirement pension at present, since no one is kept in 
office long enough to earn one. 

Opposition to the civil pension plan comes from two principal 
sources, first, the view that a place in the public service is more or 
less of a sinecure, to be passed around among the people. This 
view requires no comment. The second cause of opposition is the 
fear that the civil pension may follow the course of the military 
pension and become a public abuse; it is not denied that the prin- 
ciple of both retirement and accident pension is a sound one, but it 

1 Most of them provide an allowance of $20 to $30 monthly. 

2 A carefully prepared pension plan has been submitted in the annual reports 
of the United States Civil Service Commission. An excellent presentation of the 
need for such a system was published in 191 2 — The Civil Service by the 
Committee of One Hundred — a body formed for that purpose — in Washington, 
D C. 



THE CIVIL SERVICE 607 

is claimed that a constant pressure would be brought to bear upon 
the government to extend the system until a serious burden upon 
the national treasury would result. The force of this objection is 
greatly lessened by the fact that we do carry the old and enfeebled 
clerks on the pay roll now, and by the inherent justice of the pension 
plan. The sentiment in its favor has steadily increased and its 
final adoption awaits only an easier state of the national treasury. 
It is by these steps, just described, — entrance on merit, promotion 
on service record, tenure during efficiency and reasonable care in 
accident or superannuation, — that the public service is becoming 
a life career for the able and ambitious man. There are occa- 
sional delays, there are even severe setbacks, but the progress 
has been steady and widespread and already it can be said that 
we are creating a government profession of moderate or fair re- 
wards, increasing permanence and high ideals. 

REFERENCES 

Annual Report U. S. Civil Service Commission. 

Annual Report of the various State Commissions. See especially Massachusetts, 
Illinois, Wisconsin and New York. 

The Civil Service — Civil Pensions in Foreign Countries. Published by a com- 
mittee of 100, Colorado Building, Washington, D. C. 

Albert S. Faught: "Civil Service" in National Municipal Review, April, 
1914. 

C. R. Fish: The Civil Service. 

Annual Proceedings National Civil Service Reform League. 

C. L. King: Training for the Municipal Service in Germany: Proceedings of 
American Society of Mechanical Engineers, Annual Meeting, Dec, 1914. 

QUESTIONS 

1. Explain the chief purposes aimed at in the reorganization of the civil 
service which is now progressing in national and State governments. 

2. Why did we have no active movement for civil service before 18S0? 

3. Explain the central thought in the "Merit" principle. 

4. How far has this principle progressed in the national, State and local 
service at the present time? 

5. Why is it weakest in the State governments? 

6. Explain the practical obstacles to the progress of the "Merit" system. 

7. Prepare a report showing: The rise of the demand for a modern system 
of civil servive, and, 

8. Number of positions in the Federal service, the number subject to the 
Civil Service Act, the types of position to which the Act does not apply. 

9. Sketch the main provisions of the Act of 1883. 

10. You are an applicant for a post in the classified service, — show the 
procedure which you would follow and the chief rules governing your applica- 
tion. 

11. How docs the exemption of the highest officials from civil service rules 
affect the lower grades of the service? 

12. Resolved, that promotion in the government service should depend on 
length of service. Defend cat her side. 

13. What basis of promotion is usually followed in business houses? 

14. Explain the examination as a basis of promotion as used in the railway 

mail service. 

15. What is the difficulty in making a service record the basis of advance- 
ment? 



608 THE NEW AMERICAN GOVERNMENT 

1 6. Summarize the main provisions of the law on removals from the Federal 
civil service. 

17. A clerk who is discharged from a Federal bureau appeals to the courts on 
the ground that he was not given a hearing as required by the rules. What 
would the court decide and on what authority? 

18. A democratic clerk in a republican administration is discharged without 
being notified of the reasons. Has he any redress? 

19. Explain the more important criticisms of the civil service and give 
your impressions of their weight. 

20. Why does not the civil service commission visit the various examining 
boards which conduct the tests for entrance? 

21. Are appointing officials generally opposed to or favorable to the "Merit" 
principle? 

22. Prepare a report on the Massachusetts Civil Service Act, showing its 
most important provisions and the regulations adopted under it. 

23. How has it been applied to the cities? 

24. Explain the unusual features of the Illinois law. 

25. What are the advantages of the Chicago system? 

26. Have you a merit system in your State? If so outline it. If not make a 
draft of one which would be desirable and practical. 

27. Are our business and political conditions becoming more or less like those 
of Europe in such a way as to require a professional civil service? How? 

28. Why is it hard to retain exceptionally able men in the Federal service? 

29. Explain the more important proposals for civil pensions and give your 
impressions of the value of these proposed plans. 

30. Why are superannuated employes carried on the pay rolls at Washington 
to-day? 

31. Prepare a brief essay on the civil service as a life career, setting forth also 
the views of two civil service employ6s of your community as to the advisability 
of entering the service of the City, State or Nation. 



CHAPTER XXIX 
DIRECT LEGISLATION— THE SHORT BALLOT 

The remarkable ease with which a compactly organized group in 
the State legislature or the city council can defeat a popular meas- 
ure, or force the passage of an unpopular one has led to a vigorous 
search for some means of making legislation more truly represent 
the expressed will of the voters. This search has directed general 
attention to the plan known as Direct Legislation; — which includes 
the Referendum and the Initiative. These institutions, which were 
first viewed with scepticism in this country because they were of 
foreign origin, have slowly grown in popular favor until in one 
form or another they have secured a firm foothold and, aided by 
the general popular discussion of government questions, they are 
now being adopted in most of the advanced States, particularly 
in the central and western parts of the country. 

Origin of the Referendum. — The Referendum grew out of the 
old Teutonic custom of referring questions to a majority vote of 
the tribesmen present at a political council or "moot." This vote 
which the warriors originally cast by the simple grounding or 
rattling of their spears, represented the public opinion of the tribe. 
In more peaceful times every freeman or citizen who was admitted 
to the council had his vote, and on all matters referred to the 
general council of citizens each was given an equal vote. 1 In cer- 
tain of the smaller Swiss cantons or States the entire population 
of male citizens acts directly on all legislation at a periodical 
gathering like a town-meeting which is the direct descendant of 
the old "Moot." This direct law making is of course not possible 
in the larger States because the people could not be convened in 
one gathering. Accordingly they have chosen representative 
legislatures but have reserved the right to require that any law- 
passed by the representatives must, on demand, be referred to 
the masses of the citizenship for approval. As legislation grew in 
volume and the cantons increased in population it became neces- 
sary to provide that when the citizenship wanted to vote on any 
law, a petition should be circulated among the voters and when a 
Certain proportion of them had signed it, this petition was presented 
to the legislature, and the law in question was then subjected to the 
popular vote. When the cantons united to form the present 
Swiss National Government, this Referendum was also taken over 
into the Federal Constitution: it was provided that all constitutional 

1 A good short description of the early moot ami some of its latex influences 
m.i\ in- found in John Fiske, American Political Ideas, 

too 



6lO THE NEW AMERICAN GOVERNMENT 

amendments without exception must be submitted to the popular 
vote, and that any Federal law should be "referred" if a petition 
was sucessf ully circulated, containing a given number of names. 

The American Referendum. — In the United States the Referen- 
dum has been frequently used from the earliest times. Most of the 
State constitutions may be amended only after a final vote of the 
citizens in approval. The city charters are often required to be 
approved by the city electorate. The temperance movement in its 
local option form is an application of the referendum to the liquor 
question, the voters in each township deciding at an election whether 
liquor shall be sold or not. The debt of cities and counties may not 
be increased beyond a certain proportion of the value of taxable 
property located in their borders, except with the consent of the 
voters, and in general all important changes affecting the funda- 
mental constitutional law of a State, county, a city or even a school 
district may only be undertaken after the voters have expressed 
their wishes at the polls. In this form the Referendum has been a 
conservative feature of our government, tending to restrain the 
momentary whims and flights of the legislatures, both State and 
local. The present popular movement involves its extension to all 
legislative acts so that the people may defeat any State measure 
whatever, which they disapprove. 

A typical Referendum plan is that used in Oregon, where a vote 
is held on any bill passed by the legislature when 5% of the voters 
sign the petition, or when the legislature itself so orders. Petitions 
are filed with the Secretary of State within 90 days from the ad- 
journment of the session. Copies of the full text of the measure 
are printed by the Secretary of State and distributed among the 
voters together with any arguments for or against the measure which 
any person or organization may deposit with the Secretary, ac- 
companied by a sufficient sum of money to cover printing expenses. 
Heavy punishment is provided for any person who signs a petition 
with any name other than his own, or who signs his own name 
more than once on the same petition. A Referendum may be taken 
upon part of an act as well as upon the whole. The voters of any 
city or town may also have a Referendum on local ordinances 
upon filing a petition signed by 10% of their number. 

State laws which the legislature declares to be emergency meas- 
ures necessary for the peace, health or safety of the State may go 
into operation immediately without waiting for the Referendum to 
be held. If a measure is not so declared an emergency act, it be- 
comes operative 90 days after the legislature has adjourned, unless 
a Referendum petition has been successfully circulated meanwhile. 
If such a petition, so signed, is filed within the required 90 days, 
the Act does not become operative until approved at the polls. 
Elections are held every two years. 

The Initiative. — The Initiative is also a Swiss idea, but is of 
comparatively recent origin, the first general application having 



DIRECT LEGISLATION 6ll 

been recorded in the Swiss canton of Vaud in 1845, in which the 
cantonal constitution was amended to provide for a rudimentary 
form of the new idea. In the smaller cantons where government 
was conducted directly by a gathering of all the citizens, as we have 
seen, it was necessary to have some form of procedure for the popu- 
lar gatherings. If a new bill was to be introduced for action by the 
meeting, the rules required that it should be first signed by a number 
of the citizens before it could be considered by the assembly. This 
is in fact the original form of initiative. In those cantons which 
were so large that the voters could not meet at one place, a repre- 
sentative legislature like our own was established; when the citi- 
zens wanted a particular question considered, a petition was cir- 
culated and after it had secured the signature of a given number of 
voters, it was presented to the legislature. That body was then 
required under the constitution to act upon the bill in question. 

In Oregon and other American States, the Initiative varies from 
the Swiss form. Here the petition is circulated among the people, 
and after it has been signed by 8% of the voters or more, it is filed 
with the Secretary of State, who places it upon the ballot at the 
next election. If a majority of the voters approve, it becomes a 
law without further formality — so that a bill which is proposed by 
the Initiative may be enacted without the aid of the legislature. 
If two or more conflicting measures are approved by the people, 
that one becomes law which receives the highest affirmative vote. 
The Oregon constitution also grants to voters in cities and towns 
the right to initiate local measures or ordinances requiring the 
signature of the petition by 15% of the local voters. Some States 
require a higher and some a lower minimum percentage of the 
voters to sign the petitions; in some States the Initiative does not 
have the immediate effect of bringing a bill before the people for 
their approval but brings it first before the legislature; in other 
commonwealths again the method of bringing to the popular 
attention the arguments for and against a pending measure is 
strictly regulated by law, while in others it is not. But these are 
differences of detail which do not vitally affect the fundamental 
idea on which the system is founded, which is to give the majority 
of the voters a control not only of the membership of the legis- 
lature but also of the measures which that body passes. 

Eleven States have also applied the Initiative to changes in their 
constitutions, enabling the voters to propose amendments in- 
dependently of the legislature. Eighteen of the commonwealths 
have already adopted both Initiative and Referendum on their 
laws and several others are considering a like change. There are 
numerous variations from the Oregon system in detail hut the 
main principles are usually the same. For example, Minnesota 
requires the signatures of 6% oi the voters for the Referendum pe 
t it ion hut the bill to be referred becomes law at once unless 15% 
sign the petition. In Iowa an Initiative bill is placed on the ballot 



6l2 THE NEW AMERICAN GOVERNMENT 

at the subsequent election but meanwhile it is submitted to the 
Supreme Court which must report within 20 days as to its consti- 
tutionality. If unconstitutional the bill is not placed on the ballot. 
The Washington law of 1913 provides that the Initiative bill shall 
have a title not exceeding 100 words, on the ballot, that there must 
be filed with the Secretary of the State a financial account of the 
organization proposing the bill, and the amount of contributions 
received and expended to secure its adoption, the legislature itself 
may propose to the voters a competitive bill, and a State board of 
censors shall edit the various pamphlets published officially for dis- 
tribution to the voters, containing the arguments for and against 
the measures to be voted on. This " publicity pamphlet," as it 
is called, has now been adopted almost universally by the referen- 
dum States, as a means of informing the voter. 1 

Objections. — Among the chief objections raised against the sys- 
tem of direct legislation are the following: — 

1. The masses of the people have no opinion on most of the sub- 
jects to be submitted by the Referendum. They care little or noth- 
ing about the merits or defects of a particular law, they therefore 
participate only irregularly in referendum votes, — such a referen- 
dum cannot represent the will of the people because the final de- 
cision is made by a majority of only a small proportion of the people. 

2. The difference between a constitution and ordinary laws 
is largely obliterated by the referendum. Under our older system 
only the constitution of a State as a rule is submitted to popular 
vote, and the people therefore feel that it represents something 
more sacred and permanent than the ordinary State law. But once 
we adopt the referendum on any and all measures, this distinction 
between constitution and law vanishes and the spirit of and respect 
for our institutions would be radically changed. 

3. Direct legislation would tend to weaken the sense of respon- 
sibility of the legislature, — it makes that body a mere drafting com- 
mittee, which does not vote for or against a bill but votes to give 
the people a vote on the bill. This feeling of irresponsibility must 
inevitably affect the legislature's attitude towards all public ques- 
tions, regardless of whether they are to be submitted to referen- 
dum vote or not. The referendum therefore tends to lessen that 
very feeling of responsibility which so many of our other reforms 
have been aimed to increase. Good government is not to be secured 
by scattering responsibility but by concentrating it. 

4. It also lessens the sense of responsibility ot a voter who is 
called upon, in season and out, to register his will on a great variety 
of subjects with most of which he is not familiar. By overloading 
and overwhelming him the referendum must eventually discourage 
even his performance of his ordinary political duties. Our people 

1 The leading publication on Direct Legislation is the magazine Equity, 
published in Philadelphia. An excellent history of the movement is given in 
the issue of January, 1913. 



DIRECT LEGISLATION 613 

are not in the habit of weighing the merits of particular statutes 
or appropriations; their experience has been confined to passing 
judgment upon men and upon general lines of policy. We already 
have too many elections, and the most hopeful means of improving 
government are those which concentrate the voter's attention on a 
few issues and a few candidates. 

5. If on the other hand the referendum is used only in the case 
of laws that have aroused much party feeling, the necessary sig- 
natures to a demand for a popular vote can easily be collected at 
any time by the minority party, and the referendum can be used as 
a means of securing harassing delays. 

6. The system is both cumbersome and expensive. It relies 
upon a complicated election machinery which must frequently 
be brought into action, involving a heavy outlay for printing and 
for the holding of elections, the preparation of bills, the rent of 
voting rooms, the pay of inspectors, judges and clerks. 

7. The referendum is not required in this country because here 
the executive possesses the veto to check undesirable laws and the 
courts have full authority to declare unconstitutional those measures 
which violate fundamental legal principles. Switzerland having 
neither of these safeguards may well use the referendum, but 
America has no real need of this additional check. 

8. The Initiative has been especially objected to because it pro- 
vides no careful drafting of the proposals or new bills which are to 
be submitted to the voters. These bills may be crudely drawn, 
they may be full of serious defects, yet they must be sent to the 
people in precisely the form in which they are filed. The Initiative 
is therefore not a method of offering the people an opportunity to 
express their views, but on the contrary it is a cunning and effective 
device for imposing upon the people the views expressed in the 
proposal and to delude the unthinking into the belief that they are 
acting for themselves. If another individual has another suggestion, 
however slight the difference in subject-matter, it must be embodied 
in a separate proposal and voted upon separately. This is because 
the representative principle, which permits of discussion and modi- 
fication of views, is wanting. 

9. Direct legislation opens a field for the specious demagogue. 
This objection has been expounded frequently and is already 
familiar. 

10. It especially opens the way for radical and unwarranted 
interference by the government with private business and must 
inevitably increase this interference many fold. The danger to 
business interests from this source must soon become so serious as 
to form a grave menace to our industry and prosperity. 

An extensive array of evidence is also presented, based on the 
recent experience oi those States which have adopted the system. 
It is pointed out that the direct legislation plan was accepted by the 
voters of Oregon in 190a with but little debate, and with about f6% 



-^^Bmmmmmm 



614 THE NEW AMERICAN GOVERNMENT 

of all the voters expressing their opinipn on the measure. In 1904 
two laws were submitted; in 1906 eleven; in 1908 nineteen; in 19 10 
thirty-two. The greatest percentage of voters who have acted on 
any of these measures is 90%, and the smallest 62. The general 
average vote on referendum and initiative measures is much less 
than the vote for State officials. Very few of the direct vote meas- 
ures in 1 9 10 received more than 80% of the total vote for Governor. 
Of these measures which were passed, an insignificant proportion 
received a majority of the total number of electors. From this it is 
clear that measures are being passed or rejected as a regular occur- 
rence without the active consent of the masses of the voters. When 
we come to examine the nature of the measures which have been 
so acted on, it is claimed that they are of great importance despite 
their inability to secure the popular interest in the form of a vote. 
In 1905 the appropriation for the State university was subjected 
to the referendum, and although the total vote in the election was 
105,000, the number voting on the referendum was only 80%. In 
1910 a single tax bill was referred. It received only 75% of the 
total vote cast for Governor at the same election. The vote in 
the same year on the question of State ownership of railroads 
attracted 68%. The amendment was decided by a number of 
votes which equalled 39% of the total cast for Governor. In short 
if 39% of the total number of those voting for Governor had favored 
the amendment, the State would have been authorized to engage in 
the railroad business. The judicial system of the State was changed 
by a number which equaled 37% of those voting for Governor. 

Answers to Objections. — To these objections the friends of the 
system make answer — First — That American experience upholds 
both the principle and the practice of direct legislation. In Oregon 
there have been four general elections. At these, 64 measures have 
been voted on, supported by 71 different organizations of citizens. 
Where there was no organized effort for or against a measure it was 
commonly rejected. No radical law attacking property rights, 
either of individuals or of corporations, has been enacted by the 
referendum. The Secretary of State is required to print and furnish 
to every registered voter a pamphlet giving the full text of the 
measure to be voted on with a brief summary of the arguments 
submitted and paid for by those supporting and opposing the several 
measures. In 19 10 this pamphlet was 208 pages in length. The 
total cost to the State for the preparation and distribution of the 
pamphlet was about 20 cents for each registered voter. The sub- 
mission of 32 measures in three different elections in Oregon has cost 
the State about $781.00 for each measure. The cost to the 71 
private organizations for conducting campaigns for and against the 
measures proposed, is estimated at about $125,000. 

2. The advocates of the system consider the vote on most of the 
measures to have been intelligent and that it has been of the highest 
educational value. 



DIRECT LEGISLATION 615 

3. There has been no hasty, ill-advised legislation enacted. 

4. The interest in government has increased to a remarkable ex- 
tent. This is especially noticeable in the public schools and other 
organizations. "Brains, ideas and arguments rather than money 
and log-rolling govern the standard of legislation." The greatest of 
all changes has been that the exclusive control of government and 
of legislation by party leaders or bosses, has been abolished and the 
independence of the voter has become an established fact. 

The arguments pro and con above presented have been collected 
as impartially as possible from both friends and enemies of the new 
plan; weighing these carefully the bulk of evidence seems to favor 
the results thus far secured by direct legislation. Undoubtedly the 
system has at times been extended on too large a scale, by applying 
it to an excessive number of measures in recent elections, but im- 
partial observers must agree that the practical effects have been in 
some points good. No serious attacks have been made on private 
property or liberty, no revolutionary or subversive changes in the 
government have been made, nor have the people lost their sense of 
responsibility, as was predicted. Party ties have become looser, but 
this has in no way injured the general welfare. The people have 
displayed great independence of thought, and above all, the type 
of men who have come to the front under the direct legislation 
system is distinctly superior to that of the older regime. There 
still remains doubt in the minds of some as to the effect which the 
new wave of radical sentiment, now sweeping over the entire 
country, may have upon the States which have adopted direct 
legislation. Some observers fear that the new radicalism will find 
in direct legislation a ready means of overturning the liberty and 
the rights of the individual and that the momentary whim of a 
majority may dictate dangerous changes in the laws of States, 
sweeping aside constitutional protections and guarantees of the 
individual. To these there can be but one answer. The bulwark 
of conservatism is in the people themselves. We cannot make them 
more conservative by rendering the government less responsive 
to their will. Republican institutions are not a toy to be taken 
from the people in times of emergency. Such institutions should 
be as responsive to the popular will as they can be made, — and the 
popular will must be educated. 

The Recall. — In order to complete the popular control over 
State government the recall has been adopted in many oi the States; 
it allows the voters to retire officials for any reason whatever which 
seems satisfactory to the electorate. The usual met hod is to tile 
a petition signed by a required percentage of the voters; this has 
the effect of placing on the ballot at the subsequent election the 
question whether the official concerned shall be retired or not. In 
Kansas the petition may only be signed by those who voted for 

the officer but this is not common in other States. Bight o\ the 
commonwealths have ahead}' adopted the recall, principally those 



6l6 THE NEW AMERICAN GOVERNMENT 

of the Middle West, and four others have provided for its submis- 
sion to the people. In Minnesota the petition must be signed by 
20% of the voters; 200 words are allowed on the ballot to state the 
reasons why the official should be retired. If the vote favors recall, 
a vacancy is created which is filled in the same manner as any other 
vacancy in the office concerned. In this State and in Kansas the 
principle has been extended to include appointive as well as elective 
officials, on the ground that many of the former exercise powers 
which are as fully political in their nature as those of the elected 
posts. It is claimed that this will overcome one of the strongest 
objections to the short ballot, — many conservative people fear to 
adopt the short ballot principle because of the danger that it would 
so greatly concentrate power in the appointing officer as to take 
all control of the State offices out of the hands of the people. The 
recall of both appointive and elective officials, however, if properly 
safeguarded, would overcome this objection. The States already 
having a recall provision in their constitutions are 

Arizona, Minnesota, 

California, Nevada, 

Colorado, North Dakota, 

Idaho, Oregon, 

Kansas, Washington, 

Michigan, Wisconsin. 

Recall of Judges and Judicial Decisions. — The official recall has 
been applied in several States even to the judges. The usual method 
of registering a petition with a certain number of signatures rep- 
resenting a fixed proportion of the total registered vote, is ob- 
served. California and Oregon provide for such a recall in their 
constitutions but no serious use has thus far been made of the pro- 
vision. The constitution of New Mexico, when it applied for 
admission to the union, likewise contained a judicial recall, but 
upon the insistence of President Taft this was dropped and the 
territory was admitted with only the ordinary recall provisions, 
exclusive of judges. There are strong reasons urged against the 
judicial recall. It is forcibly argued that the judge should be re- 
moved from politics and partisan intrigues as far as is practicable. 
In order to accomplish this, his decisions, however much they may 
be tinged by public opinion, should not be influenced by a desire 
to secure re-election. This result can only be produced by giving 
him some independence of tenure, with which a recall must in- 
evitably interfere. In order to avoid destroying judicial independ- 
ence, while yet obtaining the desired sympathetic quality of judicial 
decisions, Colonel Roosevelt, in his Presidental campaign of 191 2, 
proposed that a court decision declaring an Act unconstitutional 
should be subject to a popular vote at the following election and 
that if the people voted to sustain the Act, the law should stand and 
the constitutional provision should itself remain unchanged ex- 
cept with respect to this one law. On behalf of this proposal, it is 



DIRECT LEGISLATION 617 

urged that it would obviate amending the State constitutions in 
many cases where there is no desire for their amendment, except 
to enable the legislature to pass a single Act such as a workmen's 
compensation law and where the difficulty of amendment is so 
nearly insuperable as to hold back much needed legislation for a 
long period of years. Here it is claimed that the effect of the popular 
recall of decisions would be in no wise to diminish the respect for 
the courts nor for the constitution, but to establish simply the fact 
that in a supposed conflict between a constitution and a law it was 
the expressed wish of the people, after a suitable interval for re- 
flection, that the law should stand. 

The objections to the popular reversal of court decisions run along 
two entirely distinct lines, the first that it is "an attack on the 
judiciary"; the second that it involves too much voting and places 
too much at stake on the outcome of a single election. The first 
objection is utterly untenable and merits consideration only be- 
cause it is uttered with such raven-like solemnity by those who 
advance it. After all, no proposal for the improvement of any 
department of government need be construed as an attack on that 
department. Men of such widely differing views and temperaments 
as former Presidents Roosevelt and Taft agree on the one point 
that we are not getting from our courts the results that we should, 
and that something must be done to improve both the quality and 
quantity of their output. In so far as this opinion can be con- 
strued as an "attack" every department of the government is 
subject to such revision. It is the only means by which our 
fallible government system can be kept in running order. The 
second objection, however, is a most forceful one. If the conclusions 
which we have already reached in the Chapter on Public Opinion 
are sound, then that opinion is not a universal corrective prepared 
at every moment to give an accurate verdict upon any and every 
problem that may be put to it. There is a constant and keen com- 
petition between issues, to secure and hold popular attention. 
In the amazing number and profundity of these issues we must not 
demand that the electorate perform such a feat as that required by 
the intelligent reversal of judicial decisions, unless abundant time 
and a thorough and continued concentration of public attention 
be made possible. For this our present conditions afford no op- 
portunity. 

General Conclusions on Direct Legislation. — In reviewing these 
various efforts to place political power more directly in the voter's 
hand we must conclude that the main principle, direct action, is 
sound when applied to the decision o\ a very few fundamental 
points of policy, or, in limes of emergency when the machinery of 
representative government has escaped popular control. Such in- 
stances occur all too frequently in our cities and in the State Legis- 
latures. But we must also concede that direct legislation is an 
extraordinary remedy for extraordinary evils. It is not a common 



— ^-^^^^^^^^^^w.'.^ 



6l8 THE NEW AMERICAN GOVERNMENT 

means of conducting the government to be relied on in the every- 
day management of public affairs. The friends of the system have 
sought to ignore this fact while its enemies have concentrated their 
attention upon this one defect or rather feature of the system to 
the exclusion of its real and great advantages. Of the three most 
urgent needs in government structure to-day, directness, simplicity 
and concentration, direct legislation satisfies the first. The other 
two are more completely fulfilled by the Short Ballot. 

THE SHORT BALLOT 

The Need for a New Ballot. — In sharp contrast to the movement 
for direct legislation is the Short Ballot plan. Direct legislation 
is an attempt to go back to pure democracy by submitting questions 
to the people. The Short Ballot idea on the contrary, proposes that 
the people's action be concentrated on the election of a very few 
officials. These are to be given supreme administrative power; 
they are to appoint all other officers and to control the entire 
execution of the law. The practical basis of this new plan is unusu- 
ally strong. We are to-day choosing so many officers at each elec- 
tion that no voter can tell anything about the real qualifications of 
nine-tenths of the men for whom he casts his ballot. He knows 
something of the men who head the ticket but the names of the 
others are unfamiliar. The candidates for aldermen, councilmen, 
coroners, surrogates, sheriffs, and a horde of others he has never 
seen nor heard of. He is forced to vote blindly under party direction. 
The great numbers of our people do not yet see this clearly, for 
they are still told that the most democratic form of government 
is one in which all the "servants of the people " are elected by them. 
This sounds plausible, and it would be true if these servants could 
be elected one at a time, and if we could actually find out their 
qualifications for office. But it is exactly by loading an immense 
number of officers upon the voter all at one time, that the task 
becomes superhuman, so that in despair he relies upon party 
action, that is, upon a machine leader. 

" Unpopular Government." — This paradox, that by allowing the 
citizen to vote on everybody and everything we destroy his real 
control over elections is well stated by Prof. A. M. Kales in his 
Unpopular Government in the United States. 1 " The elector, by 
being required to vote too much, has been compelled to surrender 
to a large extent his right to vote at all, and to permit others to 
cast his ballot as they see fit. Formerly people were disfranchised 
when they were given no opportunity to vote. To-day they are 
disfranchised by being required to vote too much. Formerly the 
legal rulers of the disfranchised masses were selected for them by 
the few without equivocation. To-day our legal rulers are selected 
for us by the few through the subterfuge of the masses casting their 
1 University of Chicago Press, 1914. 



DIRECT LEGISLATION 6lQ 

ballots according to the directions of the few. In other forms of 
unpopular government the central figure has been the monarch, 
the autocrat, the oligarch, or the aristocrat. In ours it is the politi- 
crat. We have avoided monarchy, autocracy, oligarchy, and aris- 
tocracy, only to find ourselves tightly in the grasp of a politocracy." 

The politician has been quick to see the advantages to him of 
many elected offices and blind voting. He has multiplied these 
until it is the usual thing to find twenty to thirty offices on the 
ballot with from one to two hundred names of candidates. Oc- 
casionally the names run over four hundred, and in March, 191 2, 
at the primary election in New York the ballot was 14 feet long. 
To offer any one of these ballots as a means of expressing popular 
opinion is a travesty on elections. They all show the need for 
some simple plan which will bring the theory and the practice of 
our institutions into harmony. The theory has been that the 
elector should vote because he has an opinion to express, while in 
practice the elector can have none because it is carefully smothered 
under an avalanche of candidates and offices. 

The Short Ballot Idea and its Application.— The Short Ballot 
movement proposes to reduce radically the number of elected 
officers in all parts of the State and local governments. The prin- 
ciple as defined by its friends is — 

First. That only those offices should be elective which are im- 
portant enough to attract public attention. 

Second. That all others be rilled by appointment. 

From this brief statement we see that the basic idea is simplicity 
and concentration. How has it worked in practice? It has been 
applied most completely in the commission form of city govern- 
ment, which, commencing in Galveston, Texas, has rapidly spread 
to many scores of cities all over the United States, ranging in popu- 
lation from 1,000 to 250,000. The origin of the plan is interesting, 
and shows the practical advantages of the short ballot principle. 
In 1900 the city of Galveston was completely destroyed by a tidal 
flood. It had previously been governed under the typical mayor and 
council form of charter, with a long series of elected officials. It 
was controlled by political gangsters, who battened on the appoint- 
ments and city contracts, and on secret funds paid by the denizens 
of the underworld for police protection. This form of government, 
confronted by a great natural catastrophe, broke down completely. 
It was seen that no ordinary measures could succeed in the Hercu- 
lean task of reconstructing the entire town, raising its level several 
feet above that of the Gulf to prevent future inundations, recon- 
structing the Health Department to cope with the epidemics that 
threatened, and reorganizing the financial system and the entire 
municipal administration. In the emergency the citizens grasped 
at the idea oi a small commission, oi five members, to be elected by 
the people and to possess all the power formerly controlled by the 
mayor and council. Each member of the commission took charge 



-.-. 



620 THE NEW AMERICAN GOVERNMENT 

of an administrative department, and with his fellow commissioners 
formed a small legislative body. In this way responsibility for 
every measure, whether it was a municipal ordinance or the ap- 
pointment of an official, was immediately located in such a way that 
the department-heads could not escape the force of public opinion. 
The five men chosen to fill these positions were so successful in 
carrying out the task of reconstruction that they have been suc- 
cessively re-elected since that time. The unusual results secured 
by the Galveston plan soon attracted the attention of other cities 
and one by one a long series of municipalities have adopted the 
commission form. In one or two instances only, has there been a 
partial failure, and these are directly attributable to the character 
of the men first elected. The failure has been retrieved by the 
early substitution of other officials. The testimony of the mer- 
chants, officials, and citizens generally in the small-commission- 
governed cities, has been so strongly favorable that the movement 
has now gathered headway all over the country. At the beginning 
of 1914 there were 346 cities under this system, including such 
large towns as Denver, Portland, Ore., and Jersey City, 128 having 
adopted it in the year 19 13 alone. The reason for its success is to 
be seen in the short ballot principle, which it embodies. The follow- 
ing analysis of the advantages of concentration in the ballot is 
given by Mr. R. S. Childs in a pamphlet l issued by the Short 
Ballot Organization of New York City: 

"The commission plan of government is based on no false idea 
that the people want to elect every clerk. It gives the power 
to five men, who thereby become conspicuously responsible before 
all the people of the city. Each one of them is important enough 
to make it worth while for the citizens to inquire concerning his 
record and character. Each candidate for the office can attract 
a crowd to hear him speak, whereas an old-time councilman would 
have been utterly unable to get a hearing before the people. There 
are not so many commissioners but what every citizen can find out 
about all of them and vote intelligently on election day. There are 
not so many as to cause a citizen to depend upon tickets put together 
for him by political specialists. Each citizen can and does make 
up his own ticket, and the function of the professional ticket-making 
machines is thereby entirely disposed of. 

"The commission plan succeeds therefore because it puts the 
power where the people can see it. The vital feature is not the 
method of organization, but the method of popular control. It is 
the ballot on election day which is unique. It is so short that every 
citizen knows what he is doing and is not relying on a party label 
or on the guidance of a politician. The " average man," " the man 
in the street," or the "plain people," whatever you choose to call 
them, are in complete control of the government. 

"The most marked phenomenon of commission government has 
1 The Short Ballot Cities. 



DIRECT LEGISLATION 62 1 

been the increased interest of the people in their city government. 
All eyes have been focussed on the city hall month after month 
without interruption. The acts of the commission are the topic 
of conversation for the street car and the business men's luncheon. 
Criticism is plentiful, and — better yet — knowledge of the facts is 
widespread. The people of the city oversee the government. The 
force of public opinion has been repeatedly illustrated in the com- 
mission governed cities. Few men, good or bad, would have the 
strength to resist popular demand when it is so intensively con- 
centrated upon them. Each commissioner knows his responsibility 
for what is done, and knows that everybody else in town knows it 
too. Politicians of the average sort have been elected to office 
many times in commission governed cities, but their conspicuous 
responsibility has brought about a remarkable responsiveness to 
the opinion of the people. 

"In our old-fashioned city governments we have committed two 
serious errors. First, we have scattered the powers of government 
among so many petty officials that it is quite impossible for the 
people to watch and control them all. Second, we have subdivided 
the power in such small fragments that no single part is really 
worth watching. A member of the city council for instance, under 
the old form of government, has so little power that it is really 
not worth while for the people of the town to become agitated over 
the question of who shall get the job. 

"Those who promoted the idea of having a host of elective offi- 
cials in the government have always taken it for granted that there 
was something democratic about this procedure. Democracy, 
however, does not consist in electing everybody, but in controlling 
everybody. The mayor's office boy, for instance, may be appointed 
by the mayor, or elected by popular vote. He is a public servant, 
but there is nothing democratic in electing him when he can just 
as well be appointed. The vital thing is that he shall be controlled 
by the people, and if he will be under better control through ap- 
pointment than through election, it is more democratic to appoint 
him." 

The Idea Applied in the City Manager Plan. — An important im- 
provement has been made on the commission form in the "city 
manager plan" adopted in Dayton, Ohio. This also embodies the 
short ballot principle and combines with it the feature of perma- 
nent expert service. The commission elects no mayor but chooses 
a professional city manager who takes over the entire administra- 
tion of the municipality, while (he commissioners make ordinances 
and direct the work o( the manager. The latter appoints and dis- 
charges all employes, as the superintendent oi a business concern 
does, and he in turn may be displaced at any time by action oi the 
commission. In the towns which have adopted this plan the com- 
mission has advertised for a manager and made its choice from a 

?arge number of well-qualified applicants, .Many of the German 



622 



THE NEW AMERICAN GOVERNMENT 



cities have for years followed this system in choosing their burgo- 
masters, and have entrusted these officials with precisely the same 
powers that the city manager enjoys. The combination of short 
ballot and professional administration in that country has long 
since solved many of the problems which our American municipali- 
ties are just commencing to face. 

The author above quoted x has suggested the following arrange- 
ment of a ballot for each of four years, showing how readily the 
principle might be adopted, — (the State offices are given their New 
York titles). 



First Year 


Second Year 


Third Year 


Fourth Year 


President and 


Governor 


Congressman 


State Senator 


Vice President 


four years 


two years 


four years 


four years 


State Assem- 


Mayor 


State Assem- 


Congressman 


blyman 


four years 


blyman 


two years 


two years 


City Council- 


two years 


City Council- 


County Super- 


man 




man 


visor 


two years 




two years 


four years 







The Relation of Ballot to Party. — The great advantage claimed 
for the short ballot by its friends is the restoration of the voters' 
real control over the party organization. No condition of American 
politics is conceivable in which we could dispense with parties. 
Some form of partisan system and organization is essential to every 
elective government. Since they are here to stay our real problem 
is to make them responsive and it is at this point that the short 
form of ballot offers its greatest service. 

Professor Charles A. Beard has prepared a strong and suggestive 
statement showing the utter impossibility of democratic govern- 
ment under the present overloaded ballot, and the facility with 
which this situation could be remedied by the election of a few 
officers with extensive appointing power, that is, by the short 
ballot principle. 2 In this article and in his admirable work on the 
American Government, Professor Beard has shown some of the 
undemocratic features of the present ballot system, as used to 
prevent any expression of real popular opinion, especially in the 
primary nominations, — and it is in the primaries that our real 
control of government exists. Says Professor Beard: — "This sys- 
tem has not only paralyzed the ballot, but it has also perverted 
the political party from its true function, which is to reflect and 
formulate the policy of the various cohering groups within each 

1 R. S. Childs: "The Short Ballot" reprinted in part from the Outlook, July 17, 
1909, and issued as a separate pamphlet by the Short Ballot Organization, New 
York City. The greater part of this stimulating article is reprinted in the 
Appendix. 

2 The Ballot's Burden, The Political Science Quarterly, December, 1909. 



DIRECT LEGISLATION 623 

political area. The political party in the United States, whatever 
may have been its historic role, has become a standing army oi 
regulars, doing the work which the electorate is supposed to do 
and in too many cases reaping the advantages which should accrue 
to the public. The party is an office-filling machine, dealing in the 
salaries of offices and the privileges which they confer; and it is 
the democratic system of popular election, intended to establish 
the rule of the people and commonly supposed to realize this in- 
tention, which in fact prevents the people from ruling steadily and 
effectively. 

"It would be possible to summon a host of witnesses, publicists, 
men of affairs, and practical politicians, in support of the doctrine 
that our elective system has been so overdone that it has ceased to 
be in fact an elective system and has become the prize of the expert. 
It would be possible to show a number of instances ill y/L ii cor- 
rupt influences have actually sought the establishment of elective 
offices for the very purpose of taking the control of them out of the 
hands of the electorate. It would be possible to demonstrate that 
no other country in the world wastes so much of its best political 
energy in overcoming the friction of its governmental machinery. 
But it seems a work of supererogation to push the argument 
farther. 

"The effort to attain a ballot short enough to assure real popular 
control, should begin in a reform of the central government of the 
State, by giving the governor power to appoint all of the executive 
officials, just as the President of the United States appoints the 
heads of departments. No good reason can be advanced why purely 
administrative officers like auditors, treasurers, and secretaries 
should be elected, for they have no large discretionary power and 
no share in shaping the policy of the administration. If the lieu- 
tenant governor is made the presiding officer of the upper house 
of the State legislature, some reason may be advanced for making 
the office elective; but it would be better to allow the Senate to 
elect its own president. It often happens that the governor is at 
loggerheads with the very men who are to assist him in ' the faithful 
execution of the laws/ because they belong to different political 
parties or, what is often worse, to contending factions within the 
same party. . . . 

"In the sphere of municipal government there arc already marked 
tendencies in the direction of simplification. All the recent charters 
of our large cities are increasing the appointing power oi the mayor 
and giving him a larger place in the scheme oi municipal adminis- 
tration. What New York has done in this regard is a matter oi 
common knowledge. The recent report oi the Boston Finance 
Commission recommends 'a simplified ballot with as few names 
thereon as possible; the abolition of party nominations; a city 
council of a single small body elected at large; the concentration 

oi executive power and responsibility in the mayor; the adminis- 



M 



624 THE NEW AMERICAN GOVERNMENT 

tration of departments by trained experts or persons with special 
qualifications for the office; full publicity secured through a per- 
manent finance commission.'" 

Advocates of the Simple Ballot Plan. — The growing popularity 
of the short ballot principle rests on its sound basis in practical 
experience. It is this feature which has rallied to its support both 
political scientists and men active in public life, the practical poli- 
tician and the conservative thinker. It is to-day favored by men of 
such widely varying political beliefs as Woodrow Wilson, Theodore 
Roosevelt, Ex-President Eliot, Senator Root, Governor Hunt of 
Arizona, Governor Hodges of Kansas and William S. U'Ren of 
Oregon. 

It has been a universal experience of all political leaders who 
attempt to make any change or improvement in either our laws or 
our government system that the whole plan of dissipated responsi- 
bility is the most serious obstacle to improvement. The compact 
professional organization of each party fights any change to the 
last ditch. Its leaders often unable to give their real reasons for 
opposition to progress, denounce every attempt at improvement as 
an effort to overthrow the American government. Such is the 
nature of the opposition now directed against the Short Ballot 
proposal. It is not denied that the present ballot is beyond the 
possible control of the voter, nor that the short plan would give him 
a more direct action upon the many hundreds of officers which he 
now nominally elects, but really neglects, nor can it be doubted 
that the whole administrative system of the State or City would 
at once respond more vigorously and completely to the direction of 
its responsible executive chief. It is simply contended that the 
short ballot would concentrate power, and is therefore un-American. 
We may realize the real force and weight this objection contains 
from the fact which has already been considered in a previous 
chapter, that concentration has already taken place and that our 
political parties to-day are under the direct control of some one 
leader in each State. Far from being a discredit, the concentra- 
tion of party leadership has been an undoubted advantage and has 
made it more efficient and responsible. A still greater benefit would 
be gained by a similar concentration in the machinery of State and 
local government, and such would clearly be the effect of the short 
ballot plan. 1 

1 Says Theodore Roosevelt in his Autobiography, writing of his early struggles 
in New York politics: 

"The most important of the reform measures our committee recommended 
was the bill taking away from the Aldermen their power of confirmation over 
the Mayor's appointments. We found that it was possible to get citizens 
interested in the character and capacity of the head of the city, so that they 
would exercise some intelligent interest in his conduct and qualifications. 
But we found that as a matter of fact it was impossible to get them interested in 
the Aldermen and other subordinate officers. In actual practice the Aldermen 
were merely the creatures of the local ward bosses or of the big municipal bosses, 
and where they controlled the appointments the citizens at large had no chance 



DIRECT LEGISLATION 625 

This is the principle which is gaining such rapid headway in the 
city government of all sections of the country. That it has not 
yet secured an equal foothold in the States is owing to the greater 
slowness of all changes in their organization. But already the 
first proposals for a rearrangement of commonwealth government 
have been worked out along the lines of greater concentration, as 
we have seen in the Chapter on State Constitutions. It would seem 
that there remains only the cultivation and development of public 
opinion on this point to bring about a general adoption of the 
principle. Its strength lies in the one fact that it simplifies and 
forces political action out into the open, and simplicity and open 
publicity are essential needs of our government to-day. 

REFERENCES 

The Annals of the American Academy, Sept., 191 2, The Initiative, Referendum 
and Recall. 

E. P. Oberholtzer : The Referendum in A merica. Second Edition. 

Senator J. Bourne, Jr.: Senate Address, May 5, 1910. Popular v. Delegated 
Government. 

whatever to make their will felt. Accordingly we fought for the principle, which 
I believe to be of universal application, that what is needed in our popular 
government is to give plenty of power to a few officials, and to make these few 
officials genuinely and readily responsible to the people for the exercise of that 
power. Taking away the confirming power of the Board of Aldermen did not 
give the citizens of New York good government. We knew that if they chose 
to elect the wrong kind of Mayor they would have bad government, no matter 
what the form of the law was. But we did secure to them the chance to get 
good government if they desired, and this was impossible as long as the old 
system remained. The change was fought in the way in which all similar 
changes always are fought. The corrupt and interested politicians were against 
it, and the battle-cries they used, which rallied to them most of the unthinking 
conservatives, were that we were changing the old constitutional system, that 
we were defacing the monuments of the wisdom of the founders of the govern- 
ment, that we were destroying that distinction between legislative and executive 
power which was the bulwark of our liberties, and that we were violent and 
unscrupulous radicals with no reverence for the past." And in his Columbus 
address in 191 2 Mr. Roosevelt brought this same reasoning to bear upon ballot 
improvements: — "In the first place, I believe in the short ballot. You cannot 
get good service from the public servant if you cannot see him. and there is no 
more effective way of hiding him than by mixing him up with a multitude of 
others so that they are none of them important enough to catch the eye of the 
average workaday citizen. The crook in public life is not ordinarily the man 
whom the people themselves elect directly to a highly important and 1 sponsible 
position. The type of boss who has made the name of politician odious rarely 
himself runs for high elective office; and if he does and is elected, the people have 
only themselves to blame. The professional politician and the professional 
lobbyist thrive most rankly under a system which provides a multitude of 
elective officers, of such divided responsibility and of such obscurity that the 
public knows, and can know, but little as to their duties and the way they per- 
form them. The people have nothing whatever to fear from giving any public 
servant power so long as they retain their own power to hold him accountable 
for his use of the power they have delegated to him. You will get best service 
where you elect only a few men, and where each man has his definite duties and 
responsibilities, and is obliged to work in the open, so that the people know who 
he is ami what he is doing, ami have the information that will enable ihem to 
hold him to account for his stewardship." 



■s 



626 THE NEW AMERICAN GOVERNMENT 

Equity Magazine, published quarterly, Philadelphia. 

Beard and Schultz: Documents on the Initiative and Referendum. 

The Civic Federation of Chicago, Bulletin No. 3, Dangers of the Initiative and 
Referendum. 

J. R. Haynes: The Actual Workings of the Initiative, Referendum and Recall. 
National Municipal Review, Volume I. 

D. F. Wilcox : Government by the People. 

A. L. Lowell: Public Opinion and Popular Government. 

O. K. Pat ton: Removal of Public Officials in Iowa. Iowa Applied History 
Series, Volume II, No. 7, contains a description of the operation of the Recall in 
the United States. 

See Appendix, article on the Short Ballot by R. S. Childs. 

The Short Ballot Bulletin, published quarterly by the Short Ballot Organiza- 
tion, New York City. 

The American Year Book. 

A.M. Kales : Unpopular Government in the United States. 

C. A. Beard: The Ballot's Burden, Pol. Sci. Quarterly, December, 1909. 

C. F. Taylor: Municipal Initiative, Referendum and Recall in Practice^ 
National Municipal Review, Oct. 1914. 

QUESTIONS 

1. How would you explain the widespread movement for direct legislation 
in the United States? 

2. Explain the origin of the referendum in Europe. 

3. How is it applied in Switzerland to constitutional changes? 

4. Explain its use in American cities. 

5. Would you consider it a conservative or a radical measure? Why? 

6. Outline the Oregon referendum plan. 

7. If a special emergency law has been passed by the assembly, what can 
the legislature do to give it immediate operation? 

8. If no special action is taken by the legislature, when does a law take 
effect? 

9. What is the initiative and show how it arose in Switzerland? 

10. Explain the Oregon initiative. 

1 1 . How has the initiative been applied to constitutional changes? 

12. Give some idea of the extent of direct legislation in the governments of 
the various States. 

13. How are the arguments for and against a "referred" bill presented to 
the voters? 

14. Outline the objections to direct legislation with reference to the legisla- 
ture's feeling of responsibility. 

1 5 . How are signatures to a petition ordinarily secured? 

16. What objection is made to the form of bills presented by the initiative? 

17. What criticisms are made as to the number of voters participating in 
direct legislation? 

18. Outline any other objections to the system. 

19. Explain the chief arguments advanced by its advocates. 

20. Give your own impressions as to the relative weight of the objections and 
supposed advantages. 

2i. Outline some uses of direct legislation in your State constitution. 

22. In your local government. 

23 . How does it affect party ties and why? 

24. Get the opinion of a political worker on direct legislation. 

25. What is the recall? 

26. To what extent has it been adopted? Can it be applied to appointed 
officials? Explain its relation to the short ballot. 

27. Have you a legislative referendum in your State? If so how would you 
proceed to have a law referred? 



DIRECT LEGISLATION 627 

28. What are your impressions as to the advisability of calling on the voter 
for action more or less frequently? Reasons. 

29. Prepare an essay on results of Direct Legislation, showing how far the 
system has/ealized the advantages claimed for ";. 

30. Resolved, that the recall of State officers except judges should be adopted 
in this State. Take either side. 

31. Resolved, that the recall of judges should be adopted in this State. 
Take either side. 

32. Resolved, that the recall of judicial decisions should be adopted in this 
State. Take either side. 

$^. Explain the difference between the two principles of direct legislation and 
short ballot respectively. 

34. Secure a list of the officers chosen at the last election in your State and 
city. Ask a few voters the names of the men chosen to these offices and report 
what percentages of officials' names were known. 

35. Secure a copy of a "sample" ballot used at the last election in your 
election district. Report on the number of offices to be filled at the election and 
the number of names on the ballot. 

36. Ask several voters in your district why they favor voting on so many 
elective positions, and give your impressions as to the force and strength of their 
replies and arguments. 

37. Explain fully with examples from your own city or election district what 
advantage it is to the political leader to have a large number of elected offices. 

38. Summarize briefly the proposal for the short ballot. 

39. Explain its adoption in Galveston, with reasons. 

40. The results in Galveston. 

41. Outline the present extent of the short ballot plan in the city govern- 
ments of the country, and contrast briefly the organizations of two cities, one 
under the old system and one under the commission plan. 

42. Explain the advantages of the Dayton system, showing its difference from 
commission government. 

43. How does the Dayton method make use of the short ballot? 

44. Make a draft or plan showing how the short ballot idea could be applied 
in your State government. 

45. Why has the principle appealed to men of different political beliefs? 
Mention some examples. 

46. Why has it not been adopted in the State governments? How does it 
fit in with the proposals made by Governors Hunt and Hodges, for the re- 
organization of State government on more simple and effective lines? 

47. Resolved that the Short Ballot principle should be applied in the local 
and central offices of the government of this State. Defend cither side. 



APPENDIX A 



CONSTITUTION OF THE UNITED STATES* 

We the people of the United States, in order to form a more perfect union, 
establish justice, insure domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this Constitution for the United 
States of America. 

ARTICLE I 

Section I. All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House of 
Representatives. 

Section 2. 1. The House of Representatives shall be composed of mem- 
bers chosen every second year by the people of the several States, and the 
electors in each State shall have the qualifications requisite for electors of the 
most numerous branch of the State legislature. 

2. No person shall be a representative who shall not have attained to the age 
of twenty-five years, and been seven years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State in which he shall 
be chosen. 

3. Representatives and direct taxes * shall be apportioned among the several 
States which may be included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three fifths of all other persons.' 2 The actual enumeration 
shall be made within three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of representatives shall not exceed 
one for every thirty thousand, but each State shall have at least one represent- 
ative; and until such enumeration shall be made, the State of New Hampshire 
shall be entitled to choose three, Massachusetts eight, Rhode Island and Provi- 
dence Plantations one, Connecticut five, New York six, New Jersey four, Penn- 
sylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, 
South Carolina [\ve, and Georgia three. 

4. When vacancies happen in the representation from any State, the 

♦Adopted by the Constitutional Convention in 17S7, ratified by State conven- 
tions in 1789. 

^ee the 16th Amendment, below, p. 641. 

3 Partly superseded by the 14th Amendment. (See below, p. 040 ) 

629 



630 APPENDIX A 

executive authority thereof shall issue writs of election to fill such va* 
cancies. 

5. The House of Representatives shall choose their speaker and other 
officers ; and shall have the sole power of impeachment. 

Section 3. 1. The Senate of the United States shall be composed of two 
senators from each State, chosen by the legislature thereof, for six years ; 
and each senator shall have one vote. 1 

2. Immediately after they shall be assembled in consequence of the first 
election, they shall be divided as equally as may be into three classes. The 
seats of the senators of the first class shall be vacated at the expiration of the 
second year, of the second class at the expiration of the fourth year, and of the 
third class at the expiration of the sixth year, so that one third may be chosen 
every second year; and if vacancies happen by resignation, or otherwise, 
during the recess of the legislature of any State, the executive thereof may 
make temporary appointments until the next meeting of the legislature, which 
shall then fill such vacancies. 1 

3. No person shall be a senator who shall not have attained to the age 
of thirty years, and been nine years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State for which he shall be 
chosen. 

4. The Vice President of the United States shall be President of the 
Senate, but shall have no vote, unless they be equally divided. 

5. The Senate shall choose their other officers, and also a president pro 
tempore, in the absence of the Vice President, or when he shall exercise the 
office of President of the United States. 

6. The Senate shall have the sole power to try all impeachments. When 
sitting for that purpose, they shall be on oath or affirmation. When the 
President of the United States is tried, the chief justice shall preside : and no 
person shall be convicted without the concurrence of two thirds of the mem- 
bers present. 

7. Judgment in cases of impeachment shall not extend further than to 
removal from office, and disqualification to hold and enjoy any office of honor, 
trust or profit under the United States : but the party convicted shall never- 
theless be liable and subject to indictment, trial, judgment and punishment, 
according to law. 

Section 4. 1 . The times, places, and manner of holding elections for 
senators and representatives, shall be prescribed in each State by the legisla- 
ture thereof; but the Congress may at any time by law make or alter such 
regulations, except as to the places of choosing senators. 

2. The Congress shall assemble at least once in every year, and such meet- 
ing shall be on the first Monday in December, unless they shall by law appoint 
a different day. 

Section 5. 1. Each House shall be the judge of the elections, returns 
and qualifications of its own members, and a majority of each shall constitute 
a quorum to do business; but a smaller number may adjourn from day to day, 
and may be authorized to compel the attendance of absent members, in such 
manner, and under such penalties as each House may provide. 
1 See the 17th Amendment, below, p. 641. 



APPENDIX A 631 

2. Each House may determine the rules of its proceedings, punish its mem- 
bers for disorderly behavior, and, with the concurrence of two thirds, expel 
a member. 

3. Each House shall keep a journal of its proceedings, and from time to 
time publish the same, excepting such parts as may in their judgment require 
secrecy; and the yeas and nays of the members of either House on any 
question shall, at the desire of one fifth of those present, be entered on the 
journal. 

4. Neither House, during the session of Congress, shall, without the consent 
of the other, adjourn for more than three days, nor to any other place than 
that in which the two Houses shall be sitting. 

Section 6. 1. The senators and representatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out of the Treasury 
of the United States. They shall in all cases, except treason, felony and 
breach of the peace, be privileged from arrest during their attendance at the 
session of their respective Houses, and in going to and returning from the 
same; and for any speech or debate in either House, they shall not be ques- 
tioned in any other place. 

2. No senator or representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United States, 
which shall have been created, or the emoluments whereof shall have been 
increased during such time; and no person holding any office under the 
United States shall be a member of either House during his continuance in 
office. 

Section 7. 1. All bills for raising revenue shall originate in the House 
of Representatives ; but the Senate may propose or concur with amendments 
as on other bills. 

2. Every bill which shall have passed the House of Representatives and 
Ihe Senate, shall, before it become a law, be presented to the President of 
the United States; if he approve he shall sign it, but if not he shall return it, 
with his objections to that House in which it shall have originated, who shall 
enter the objections at large on their journal, and proceed to reconsider it. If 
after such reconsideration two thirds of that House shall agree to pass the 
bill, it shall be sent, together with the objections, to the other House, by which 
it shall likewise be reconsidered, and if approved by two thirds of that House, 
it shall become a law. But in all such cases the votes of both Houses shall 
be determined by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten days (Sundavs ex- 
cepted) after it shall have been presented to him, the same shall be a law, in 
like manner as if he had signed it, unless the Congress by (.heir adjournment 
prevent its return, in which case it shall not be a law. 

3. Every order, resolution, or vote to which the concurrence of the Senate 
and House of Representatives may be necessary (except on a question ol ad- 
journment) shall be presented to the President of the United States; and be- 
fore the same shall take effect, shall be approved by him, or being disapproved 
by him, shall be repassed by two thirds of the Senate and House oi Represent- 
atives, according to the rules and limitations prescribed in the case o( a bill. 



632 APPENDIX A 

Section 8. 1. The Congress shall have power to lay and collect taxes, 
duties, imposts and excises, to pay the debts and provide for the common de- 
fense and general welfare of the United States; but all duties, imposts and 
excises shall be uniform throughout the United States; 

2. To borrow money on the credit of the United States; 
— ~- 3. To regulate commerce with foreign nations, and among the several 
States, and with the Indian tribes; 

4. To establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United States; 

5. To coin money, regulate the value thereof, and of foreign coin, and fix 
the standard of weights and measures; 

6. To provide for the punishment of counterfeiting the securities and cur- 
rent coin of the United States; 

7. To establish post offices and post roads; 

8. To promote the progress of science and useful arts, by securing for lim- 
ited times to authors and inventors the exclusive right to their respective writ- 
ings and discoveries; 

9. To constitute tribunals inferior to the Supreme Court; 

10. To define and punish piracies and felonies committed on the high seas, 
and offenses against the law of nations; 

11. To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water; 

1 2. To raise and support armies, but no appropriation of money to that use 
shall be for a longer term than two years; 

13. To provide and maintain a navy; 

14. To make rules for the government and regulation of the land and naval 
forces; 

15. To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections and repel invasions; 

16. To provide for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the service of the United 
States, reserving to the States respectively the appointment of the officers, and 
the authority of training the militia according to the discipline prescribed by 
Congress; 

1 7. To exercise exclusive legislation in all cases whatsoever, over such dis- 
trict (not exceeding ten miles square) as may, by cession of particular States, 
and the acceptance of Congress, become the seat of the government of the 
United States, and to exercise like authority over all places purchased by the 
consent of the legislature of the State in which the same shall be, for the erec- 
tion of forts, magazines, arsenals, dockyards, and other needful buildings; and 

18. To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this Constitution 
in the government of the United States, or in any department or officer thereof. 

Section 9. 1. The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be prohibited by the 
Congress prior to the year one thousand eight hundred and eight, but a tax or 
duty may be imposed on such importation, not exceeding ten dollars for each 
person. 



APPENDIX A 633 

2. The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation, or other direct, tax shall be laid, unless in proportion to 
the census or enumeration hereinbefore directed to be taken. 1 

5. No tax or duty shall be laid on articles exported from any State. 

6. No preference shall be given by any regulation of commerce or revenue 
to the ports of one State over those of another : nor shall vessels bound to, or 
from, one State be obliged to enter, clear, or pay duties in another. 

7. No money shall be drawn from the treasury, but in consequence of ap- 
propriations made by law; and a regular statement and account of Lhe receipts 
and expenditures of all public money shall be published from time to time. 

8. No title of nobility shall be granted by the United States : and no person 
holding any office of profit or trust under them, shall, without the consent of 
the Congress, accept of any present, emolument, office, or title, of any kind 
whatever, from any king, prince, or foreign State. 

Section 10. 1. No State shall enter into any treaty, alliance, or con- 
federation; grant letters of marque and reprisal; coin money; emit bills of 
credit; make anything but gold and silver coin a tender in payment of 
debts ; pass any bill of attainder, ex post facto law, or law impairing the obli- 
gation of contracts, or grant any title of nobility. 

2. No State shall, without the consent of the Congress, lay any imposts 
or duties on imports or exports, except what may be absolutely necessary for 
executing its inspection laws : and the net produce of all duties and imposts 
laid by any State on imports or exports, shall be for the use of the treasury 
of the United States; and all such laws shall be subject to the revision and 
control of the Congress. 

3. No State shall, without the consent of Congress, lay any duty of ton- 
nage, keep troops, or ships of war in time of peace, enter into any agreement 
or compact with another State, or with a foreign power, or engage in war, 
unless actually invaded, or in such imminent danger as will not admit of delay. 

ARTICLE II 

Section i. i. The executive power shall be vested in a President of the 
United States of America. lie shall hold his office during the term of four 
years, and, together with the Vice President, chosen for the same term, be 
elected, as follows : 

2. Each State shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole Dumber o( senators and repre- 
sentatives to which the State may be entitled in the Congress: but no senator 
or representative, or person holding an office of trust or profit under the 
United States, shall be appointed an elector. 

2 The electors shall meet in their respective States, and vote bv ballot for two 
persons, of whom one at least shall not be an inhabitant of the same State with 
themselves. And they shall make a list of all the persons voted tor. and ^( 

1 See the 16th Amendment, below, p. 641. 

2 The following paragraph was in force only from 17SS to 1803. 



634 APPENDIX A 

the number of votes for each ; which list they shall sign and certify, and 
transmit sealed to the seat of the government of the United States, directed 
to the president of the Senate. The president of the Senate shall, in the 
presence of the Senate and House of Representatives, open all the certificates, 
and the votes shall then be counted. The person having the greatest number 
of votes shall be the President, if such number be a majority of the whole 
number of electors appointed; and if there be more than one who have such 
majority, and have an equal number of votes, then the House of Representa- 
tives shall immediately choose by ballot one of them for President ; and if no 
person have a majority, then from the five highest on the list the said House 
shall in like manner choose the President. But in choosing the President, the 
votes shall be taken by States, the representation from each State having one 
vote ; a quorum for this purpose shall consist of a member or members from 
two thirds of the States, and a majority of all the States shall be necessary to 
a choice. In every case, after the choice of the President, the person having 
the greatest number of votes of the electors shall be the Vice President. But 
if there should remain two or more who have equal votes, the Senate shall 
choose from them by ballot the Vice President. 1 

3. The Congress may determine the time of choosing the electors, and the 
day on which they shall give their votes ; which day shall be the same through- 
out the United States. 

4. No person except a natural born citizen, or a citizen of the United 
States, at the time of the adoption of this Constitution, shall be eligible to the 
office of President ; neither shall any person be eligible to that office who shall 
not have attained to the age of thirty-five years, and been fourteen years a 
resident within the United States. 

5. In case of the removal of the President from office, or of his death, res- 
ignation, or inability to discharge the powers and duties of the said office, the 
same shall devolve on the Vice President, and the Congress may by law pro- 
vide for the case of removal, death, resignation, or inability, both of the 
President and Vice President, declaring what officer shall then act as President, 
and such officer shall act accordingly, until the disability be removed, or a 
President shall be elected. 

6. The President shall, at stated times, receive for his services a compensa- 
tion, which shall neither be increased nor diminished during the period for 
which he shall have been elected, and he shall not receive within that period 
any other emolument from the United States, or any of them. 

7. Before he enter on the execution of his office, he shall take the following 
oath or affirmation : — "I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and will to the best of 
my ability, preserve, protect and defend the Constitution of the United States." 

Section 2. 1. The President shall be commander in chief of the army 
and navy of the United States, and of the militia of the several States, when 
called into the actual service of the United States; he may require the opinion, 
in writing, of the principal officer in each of the executive departments, upon 
any subject relating to the duties of their respective offices, and he shall have 

1 Superseded by the 12th Amendment. (See p. 639.) 



APPENDIX A 635 

power to grant reprieves and pardons for offenses against the United States, 
except in cases of impeachment. 

2. He shall have power, by and with the advice and consent of the Senate, 
to make treaties, provided two thirds of the senators present concur; and he 
shall nominate, and by and with the advice and consent of the Senate, shall 
appoint ambassadors, other public ministers and consuls, judges of the Supreme 
Court, and all other officers of the United States, whose appointments are not 
herein otherwise provided for, and which shall be established by law : but the 
Congress may by law vest the appointment of such inferior officers, as they 
think proper, in the President alone, in the courts of law, or in the heads of 
departments. 

3. The President shall have power to fill up all vacancies that may happen 
during the recess of the Senate, by granting commissions which shall expire at 
the end of their next session. 

Section 3. 1. He shall from time to time give to the Congress informa- 
tion of the state of the Union, and recommend to their consideration such 
measures as he shall judge necessary and expedient; he may, on extraordinary 
occasions, convene both Houses, or either of them, and in case of disagree- 
ment between them with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper; he shall receive ambassadors and 
other public ministers; he shall take care that the laws be faithfully executed, 
and shall commission all the officers of the United States. 

Section 4. The President, Vice President, and all civil officers of the 
United States, shall be removed from office on impeachment for, and conviction 
of, treason, bribery, or other high crimes and misdemeanors. 

ARTICLE III 

Section i. The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress may from time 
to time ordain and establish. The judges, both of the Supreme and inferior 
courts, shall hold their offices during good behavior, and shall, at stated times, 
receive for their services, a compensation, which shall not be diminished during 
their continuance in office. 

SECTION 2. I. The judicial power shall extend to all cases, in law and 
equity, arising under this Constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority; — to all eases 
affecting ambassadors, other public ministers and consuls; — to all cases of 
admiralty and maritime jurisdiction; — to controversies to which the United 
States shall be a party; — to controversies between two or more States; — be- 
tween a State and citizens of another State; l — between citizens of different 
States, — between citizens of the same State claiming lands under grants of 
different States, and between a State, or the citizens thereof, and foreign States, 
citizens or subjects. 

2. In all cases affecting ambassadors, other public ministers and consuls, 
and those in which a State shall be party, the Supreme Court shall have orig- 
inal jurisdiction. In all the other eases before mentioned, the Supreme Court 

1 See the nth Amendment, p. 639. 



636 APPENDIX A 

shall have appellate jurisdiction, both as to law and to fact, with such excep 
tions, and under such regulations as the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall be by jury; 
and such trial shall be held in the State where the said crimes shall have been 
committed; but when not committed within any State, the trial shall be at 
such place or places as the Congress may by law have directed. 

Section 3. 1. Treason against the United States, shall consist only in 
levying war against them, or in adhering to their enemies, giving them aid 
and comfort. No person shall be convicted of treason unless on the testimony 
of two witnesses to the same overt act, or on confession in open court. 

2. The Congress shall have power to declare the punishment of treason, but 
no attainder of treason shall work corruption of blood, or forfeiture except 
during the life of the person attainted. 

ARTICLE IV 

Section i. Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other State. And the 
Congress may by general laws prescribe the manner in which such acts, records 
and proceedings shall be proved, and the effect thereof. 

Section 2. 1. The citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States. 

2. A person charged in any State with treason, felony, or other crime, who 
shall flee from justice, and be found in another State, shall on demand of the 
executive authority of the State from which he fled, be delivered up to be re- 
moved to the State having jurisdiction of the crime. 

3. No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim 
of the party to whom such service or labor may be due. 

Section 3. 1. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the jurisdiction 
of any other State ; nor any State be formed by the junction of two or more 
States, or parts of States, without the consent of the legislatures of the States 
concerned as well as of the Congress. 

2. The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the 
United States; and nothing in this Constitution shall be so construed as to 
prejudice any claims of the United States, or of any particular State. 

Section 4. The United States shall guarantee to every State in this Union 
a republican form of government, and shall protect each of them against inva- 
sion; and on application of the legislature, or of the executive (when the 
legislature cannot be convened) against domestic violence. 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall deem it necessary, 
shall propose amendments to this Constitution, or, on the application of the 
legislatures of two thirds of the several States, shall call a convention for pro- 



APPENDIX A 637 

posing amendments, which, in either case, shall be valid to all intents and pur- 
poses, as part of this Constitution when ratified by the legislatures of three 
fourths of the several States, or by conventions in three fourths thereof, as the 
one or the other mode of ratification may be proposed by the Congress; Pro- 
vided that no amendment which may be made prior to the year one thousand 
eight hundred and eight shall in any manner affect the first and fourth clauses 
in the ninth section of the first article; and that no State, without its consent, 
shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI 

1. All debts contracted and engagements entered into, before the adoption 
of this Constitution, shall be as valid against the United States under this Con- 
stitution, as under the Confederation. 

2. This Constitution, and the laws of the United States which shall be 
made in pursuance thereof ; and all treaties made, or which shall be made, 
under the authority of the United States, shall be the supreme law of the land; 
and the Judges in every State shall be bound thereby, anything in the Consti- 
tution or laws of any State to the contrary notwithstanding. 

3. The senators and representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers, both of the 
United States and of the several States, shall be bound by oath or affirmation 
to support this Constitution ; but no religious test shall ever be required as a 
qualification to any office or public trust under the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States so ratifying the same. 
Done in Convention by the unanimous consent of the States present the 
seventeenth day of September in the year of our Lord one thousand seven 
hundred and eighty-seven, and of the independence of the United States of 
America the twelfth. In witness whereof we have hereunto subscribed our 
names, 

Go: Washington — 

Presidt. and Deputy from Virginia 



Articles in addition to, and amendment of, the Constitution of the United 
States of America, proposed by Congress, ami ratified by the legislatures of 
the several States pursuant to the fifth article of the original Constitution. 

ARTICLE 1 1 

Congress shall make no law respecting an establishment of religion, or pro- 
hibiting the free exercise thereof; or abridging the freedom of speech, or of 
the press ; or the right of the people peaceably to assemble, and to petition 
the government for a redress of grievances. 

1 The first ten Amendments adopted in 1701. 



638 APPENDIX A 

ARTICLE II 

A well regulated militia, being necessary to the security of a free State, 
the right of the people to keep and bear arms, shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace be quartered in any house, without the 
consent of the owner, nor in time of war, but in a manner to be prescribed by 
law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue, but upon probable cause, supported by oath or affirma- 
tion, and particularly describing the place to be searched, and the persons or 
things to be seized. 

ARTICLE V 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, when in actual service in 
time of war or public danger ; nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb ; nor shall be compelled in 
any criminal case to be a witness against himself, nor be deprived of life, liberty, 
or property, without due process of law ; nor shall private property be taken 
for public use without just compensation. 

ARTICLE VI 

In all criminal prosecutions, the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall have been previously as- 
certained by law, and to be informed of the nature and cause of the accusa- 
tion ; to be confronted with the witnesses against him ; to have compulsory 
process for obtaining witnesses in his favor, and to have the assistance of 
counsel for his defense. 

ARTICLE VII 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a jury 
shall be otherwise reexamined in any court of the United States, than accord- 
ing to the rules of the common law. 

ARTICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 



APPENDIX A 639 

ARTICLE IX 

The enumeration in the Constitution of certain rights shall not be con- 
strued to deny or disparage others retained by the people. 

ARTICLE X 

The powers not delegated to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States respectively, or to the 
people. 

ARTICLE XI 1 

The judicial power of the United States shall not be construed to extend 
to any suit in law or equity, commenced or prosecuted against one of the 
United States by citizens of another State, or by citizens or subjects of any 
foreign State. 

ARTICLE XII 2 

The electors shall meet in their respective States, and vote by ballot for 
President and Vice President, one of whom, at least, shall not be an inhabit- 
ant of the same State with themselves ; they shall name in their ballots the 
person voted for as President, and in distinct ballots, the person voted for as 
Vice President, and they shall make distinct lists of all persons voted for as 
President and of all persons voted for as Vice President, and of the number of 
votes for each, which lists they shall sign and certify, and transmit sealed to 
the seat of the government of the United States, directed to the President of 
the Senate ; — The President of the Senate shall, in the presence of the Senate 
and House of Representatives, open all the certificates and the votes shall then 
be counted; — The person having the greatest number of votes for President, 
shall be the President, if such number be a majority of the whole number of 
electors appointed ; and if no person have such majority, then from the per- 
sons having the highest numbers not exceeding three on the list of those voted 
for as President, the House of Representatives shall choose immediately, by 
ballot, the President. But in choosing the President, the votes shall be taken 
by States, the representation from each State having one vote ; a quorum for 
this purpose shall consist of a member or members from two thirds of the States, 
and a majority of all the States shall be necessary to a choice. And if the 
House of Representatives shall not choose a President whenever the right oi 
choice shall devolve upon them, before the fourth day of March next follow- 
ing, then the Vice President shall act as President, as in the case of the death 
or other constitutional disability of the President. The person having the 
greatest number of votes as Vice President shall be the Vice President, if such 
number be a majority of the whole number of electors appointed, and if no 
person have a majority, then from the two highest numbers on the list, the 
Senate shall choose the Vice President ; a quorum for the purpose shall con- 
sist of two thirds of the whole number of Senators, and a majority o( the whole 
number shall be necessary to a choice. But no person constitutionally ineli- 
gible to the office of President shall be eligible to that of Nice President oi the 
United States. 

1 Adopted in 1798. a Adopted in 1S04. 



64O APPENDIX A 

ARTICLE XIII 1 

Section i. Neither slavery nor involuntary servitude, except as pun- 
ishment for crime whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their jurisdiction. 

2. Congress shall have power to enforce this article by appropriate legisla- 
tion. 

ARTICLE XIV 2 

1. All persons born or naturalized in the United States, and subject to the 
jurisdiction thereof, are citizens of the United States and of the State wherein 
they reside. No State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States ; nor shall any State 
deprive any person of life, liberty, or property, without due process of law ; nor 
deny to any person within its jurisdiction the equal protection of the laws. 

2. Representatives shall be apportioned among the several States according 
to their respective numbers, counting the whole number of persons in each 
State, excluding Indians not taxed. But when the right to vote at any election 
for the choice of electors for President and Vice President of the United States, 
representatives in Congress, the executive and judicial officers of a State, or 
the members of the legislature thereof, is denied to any of the male inhabitants 
of such State, being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion, or other crime, the 
basis of representation therein shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

3. No person shall be a senator or representative in Congress, or elector of 
President and Vice President, or hold any office, civil or military, under the 
United States, or under any State, who, having previously taken an oath, as a 
member of Congress, or as an officer of the United States, or as a member of 
any State legislature, or as an executive or judicial officer of any State, to sup- 
port the Constitution of the United States, shall have engaged in insurrection or 
rebellion against the same, or given aid or comfort to the enemies thereof. 
But Congress may by a vote of two thirds of each House, remove such disability. 

4. The validity of the public debt of the United States, authorized by law, 
including debts incurred for payment of pensions and bounties for services in 
suppressing insurrection or rebellion, shall not be questioned. But neither the 
United States nor any State shall assume or pay any debt or obligation incurred 
in aid of insurrection or rebellion against the United States, or any claim for 
the loss or emancipation of any slave; but all such debts, obligations and claims 
shall be held illegal and void. 

5. The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article. 

ARTICLE XV 3 

Section i. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of race, 
color, or previous condition of servitude. 

l Adopted in 1865. 2 Adopted in 1868. 8 Adopted in 1870. 



APPENDIX A 641 

Section 2. The Congress shall have power to enforce this article by ap- 
propriate legislation. 



ARTICLE XVI 



The Congress shall have power to lay and collect taxes on incomes, from 
whatever source derived, without apportionment among the several States, 
and without regard to any census or enumeration. 

ARTICLE XVII 2 

The Senate of the United States shall be composed of two senators from 
each State, elected by the people thereof, for six years ; and each senator shall 
have one vote. The electors in each State shall have the qualifications requi- 
site for electors of the most numerous branch of the State legislature. 

When vacancies happen in the representation of any State in the Senate, 
the executive authority of such State shall issue writs of election to fill such 
vacancies : Provided, That the legislature of any State may empower the ex- 
ecutive thereof to make temporary appointments until the people fill the 
vacancies by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term 
of any senator chosen before it becomes valid as part of the Constitution. 

1 Passed July, 1909; proclaimed February 25, 1913. 

2 Passed May, 1912, in lieu of paragraph one, Section 3, Article I, of the Con- 
stitution and so much of paragraph two of the same Section as relates to the filling 
of vacancies; proclaimed May 31, 1913. 






APPENDIX B 

'DISTRUST OF STATE LEGISLATURES. THE CAUSE; THE 
REMEDY" 

Governor George H. Hodges of Kansas 

proceedings, conference of governors 

Colorado Springs, 19 13. 



The thing we seek is a representative and efficient legislature, one that is at 
all times responsive to the public will and weal, and just because the two-house 
system has too often been neither representative, nor efficient, nor responsive, 
dissatisfaction with it has become wide-spread. Constitutional Convention 
after Constitutional Convention has exhausted its ingenuity in devising new 
restrictions on its power for evil and the end is not yet. The new Commission 
form of Government is the out-growth of this dissatisfaction with that phase of 
our present legislative system, which involves the unit system of representation, 
which does not represent. Not very long ago, two constitutional amendments 
were adopted by the people of Kansas for this very purpose — one of which gives 
to the Governor the power to veto any item in an appropriation bill without 
being compelled to disapprove of the entire act; and the other making it a 
matter for judicial, instead of legislative determination, whether an act is special 
within the constitutional prohibition against that sort of legislation. 

"The first of these amendments was made necessary by the practice of in- 
serting in appropriation bills, items for unnecessary purposes, amounting in 
many cases to a graft pure and simple, or the allowance of unjust claims against 
the State in the miscellaneous appropriation bill. Many of these claims, it was 
found, had reappeared after a few years, and had been allowed a second time. 

"The second amendment referred to was made necessary by the continual 
flood of special acts which were passed by the legislature notwithstanding the 
constitutional prohibition against such legislation. And I regret to say that 
even this amendment has not remedied the evil. 

"Last year, both the great political parties in Kansas pledged themselves to 
submit to the people an Initiative and Referendum amendment to our constitu- 
tion at the general election to be held in 1014. A joint resolution submitting 
an effective Initiative and Referendum passed the State Senate with the nec- 
essary two-thirds vote. This resolution failed in the House of Representatives, 
because certain members of that body who are pleased to style themselves 
'Progressives' permitted themselves to be bound hand and foot by a caucus 
agreement to vote against it. When this sort of thing happens, it is little wonder 
that the distrust of our State legislatures as now constituted, has become wide- 
spread. The fact that in many States the Initiative and Referendum has been 
adopted, and is being demanded in many more, is of itself but a manifestation of 
distrust. It is an evidence that the people themselves are reaching out after 
a more representative, responsible, and efficient instrumentality for the making 
of laws. 

"After all the amending of constitutions, the bicameral legislature remains a 
heavy and complicated mechanism, yielding quickly enough to the operation 
of the political expert, but blocking at every turn the attempts of the people to 
work it honestly and efficiently, and it has been said that by a Strange perversity 
of fate, the fear of democracy and the passion for democracy have contributed 

643 



644 APPENDIX B 

equally to this result. Powerful, private interests find their best shelter behind 
the multiplicity of barriers, and politicians have no desire to make plain the 
rules of the game, while reformers generally attack corruption or inefficiency by 
adding some new office or board of control. And so it has come about that the 
people have been unable to maintain control over their own government, and 
it has fallen more and more completely into the hands of the professional pol- 
itician, aptly described as 'One who knows more about the voter's political 
business than the voter does himself.' 

"Cumbersome and complicated legislative machinery — following the law 
that everything produces after its kind — has resulted in cumbersome and com- 
plicated legislation. Crude or complicated laws of necessity require interpreta- 
tion and even the lawyer finds himself all but submerged by the flood of judicial 
decisions, interpreting these laws, which the court turns out annually. 

"There appears to be no good reason why our laws should not be written in 
simple and direct language, expressing so clearly their purpose, that a man of 
average intelligence may understand what is meant. 

"Take for example the famous Sherman act, with which the Federal Courts 
have wrestled for years, and have written volumes of interpreted decisions — 
and the end is not yet. And so it is in almost every important law on the statute 
books of either state or national government. 

"If the sovereign voter is ever to reach the goal of representative, responsible 
and efficient government, it must be thru such a simplification of our legislative 
machinery as will permit the electorate to bring steady and persistent pressure 
on this great organ of government, in the broad day-light of interested public 
discussion and to fix the responsibility for any failure on the part of any member 
of the legislative body, to respond to the will of the majority of the people. 

"In an address delivered some years ago, President Wilson said: 

"'Elaborate your government; place every officer upon his own dear little 
statue; make it necessary for him to be voted for, and you will not have a dem- 
ocratic government. Just so certainly as you segregate all these little offices and 
put every man on his own statuary pedestal and have a miscellaneous organ of 
government, too miscellaneous for a busy people either to put together or to 
watch, public aversion will have no effect upon it; and public opinion, finding 
itself ineffectual, will get discouraged, as it does in this country, by finding its 
assaults like assaults against battlements of air, where they find no one to resist 
them, where they capture no positions, where they accomplish nothing. You 
have a grand housecleaning; you have a grand over-turning, — and the next 
morning you find the government going on just as it did before you did the over- 
turning. What is the moral? . . . The remedy is contained in one word: 
Simplification. Simplify your process, and you will begin to control. Com- 
plicate them and you will get farther and farther away from their control. Sim- 
plification ! Simplification ! Simplification ! is the task that awaits us. To reduce 
the number of persons to be voted for to the absolute workable minimum — know- 
ing whom you have selected, knowing whom you have trusted, and having so 
few persons to watch, that you can watch them.' 

"This language applies with a special force to our present two-house legislative 
system. When a desirable measure fails to pass, or an undesirable measure 
passes, there is no way whereby the public can single out a particular member 
of the legislature and say, 'You, personally, are principally to blame in this 
matter.' Not only is it almost impossible to locate the man who is to blame, 
but often when he can be located, it is very probable that the voters in his dis- 
trict are not particularly concerned about what he has done, although his action 
may be of great importance to the State as a whole, while he is responsible to 
nobody except his own local constituents. 

"One county in our State has no public or privately owned utilities. Its 
representative received one hundred and eighty-eight votes, and while his party 
declared for a Utilities Commission law, he voted against his party pledge, be- 
cause it raised the taxes. Another member of the same party received four thou- 
sand votes — his county recognized the necessity of the enactment and he sup- 
ported the measure. It takes a decided stretch of imagination to recognize a 



APPENDIX B 645 

truly representative body, wherein the power of one hundred and eighty-eight 
votes in one county, equal four thousand in another. 

"This system of scattered responsibility puts the very smallest incentive 
upon the individual to accomplish effective results. Not only can he divide 
the blame with all the rest of the majority, but he can offset it entirely by bring- 
ing forward some local excuse or seeming justification. He can point to some- 
thing else he has done which was of particular interest to his constituents and 
thereby avert any embarrassing consequences for a mistake or misdeed of pro- 
found importance to the state as a whole, if indeed under the present system he is 
capable of accomplishing anything. 

"Our legislatures are for the most part limited to short sessions and the terms 
of the members of the House do not as a rule cover more than one session. 
Generally, an overwhelming majority of the House of Representatives are first- 
termers, and without legislative experience. The same thing is often true of the 
Senate. 

"And yet, legislatures so composed, add something like 25,000 pages to our 
statute books each year. In Massachusetts this year not less than 2,500 bills 
were introduced. In Pennsylvania, 2,100; in Wisconsin, 1,200; and in the State 
of Washington, 1,200. 

"In 191 1 the Session Laws of California was a book of 2,000 printed pages; 
the Session Laws of Connecticut, 360 pages; Idaho, 810 pages; Indiana, 705 
pages; Maine, 829 pages; Massachusetts 1,100 pages; Michigan, 533 pages; 
Missouri, 451 pages; New Jersey, 834 pages. 

"The Session Laws of Kansas for 1913 is a book of 594 pages and contains 
376 laws and resolutions. Excluding appropriation bills, 36 important new 
laws were passed. The rest were either local acts, amendments, or were trivial 
in their nature. The last Kansas legislature was in session 49 days or parts of 
days, consequently something like 7 laws passed both Houses each day. 

"It is hardly possible for a member to read 7 enactments a day, and it is an 
impossibility for him to comprehend and understand them. It must be remem- 
bered, however, that something like 1,700 bills were introduced and several 
hundred of these were reported by committees and that a great deal of time was 
occupied in considering bills which were ultimately killed in one House or the 
other. 

"In the closing days of the session — as in all legislatures — there was law- 
making in hot haste and bills were rushed through under omnibus roll-calls, and 
the result was a lot of more or less crude and illy-digested laws, some of which 
are puzzles for even learned jurists to interpret with anything like satisfaction 
to themselves or to the public. 

"Notwithstanding the fact my executive clerk and the Attorney General did 
their best to scrutinize all the bills, Chapters 177 and 178, and Chapters 174 
and 175, respectively, are duplicates. Chapter 75 of the Laws of 101 1 was re- 
pealed three times — first by Section 3 of Chapter 75 of the Laws of 1913; by 
Section 2 of Chapter 123 of the Laws of 1913; and then by Section 7 oi Chap- 
ter 124 of the Laws of 1913. Chapter 318 of the Laws of 1913 was immediately 
amended by Chapter 319 of the Laws of 1013. Chapter 8a of the Laws of 101 1 
was repealed by Section 7 of Chapter 80 of the Laws of 1013, and after being 
repealed was then amended and repealed by Chapter 108 of the Laws of 1013. 

"A great many legislative sins are committed by the omnibus method. Meas- 
ures that meet the positive disapproval sometimes of a majority of the House or 
Senate, arc omnibussed, when if considered separately in either body, their 
passage would be impossible. 

"I know of enactments upon the statute books that, after passing one branch 
of the legislature, were objected out of an omnibus reading and roll call and were 
never voted on in the Senate at all, but were shown afterwards by the Journal as 
having passed the Senate in the usual legal way. The "omnibus " method would 
be impossible with a single-house legislature of few numbers. 

"Much time was given to the passage of a bill relating to the practice of 
Chiropratic — whatever that is. 1 let this hill become a law without my signa- 
ture, but on examination found that it required me to appoint as members of a 



646 APPENDIX B 

board, three Chiropractors who had practiced their art in Kansas for two years 
past. In order to comply with this provision of the law, I would have been com- 
pelled to appoint men or women who had been openly violating the Medical 
Registration laws of our State for two years — a thing which, as Governor, I re- 
fused to do. 

"The law governing the inspection of hotels and lodging houses contains this 
provision: 'All carpets and equipment used in offices and sleeping rooms, in- 
cluding walls and ceiling, must be well plastered and be kept in a clean and 
sanitary condition at all times.' 

"For six years there stood upon our statute book as a part of the law regulating 
automobile traffic on the public highways, the following — which was doubtless 
added by some hilarious politician who was impressed by the 'band wagon' 
idea of party management: 

" ' Nothing in this section shall be construed as in any way preventing, ob- 
structing, impeding, embarrassing, or in any other manner or form, infringing 
upon the prerogative of any political chauffeur, to run an automobile band- 
wagon at any rate he sees fit, compatible with the safety of the occupants thereof; 
provided, however, that not less than ten nor more than twenty ropes be allowed 
at all times to trail behind this vehicle when in motion, in order to permit those 
who have been so fortunate as to escape with their political lives, an opportunity 
to be dragged to death; and provided further, that whenever a mangled and 
bleeding political corpse implores for mercy, the driver of the vehicle shall, in 
accordance with the provisions of this bill, "Throw out the life-line.' ' ' 

"Here is another illuminating one: 

"'If any stallion or jack escape from his owner by accident, he shall be liable 
for all damages, but shall not be liable to be fined as above provided.' 

"By being somewhat heedless to the ordinary rules of grammar, some court 
might decide that it was the owner and not the stallion or jack who is made 
liable for damage under this act. 

"I am told that in the early days of Oklahoma, a compilation of the laws of 
this Prairie State included a full set of regulations for the government of harbors, 
wharfage, and lighthouses, taken bodily from the regulations enacted by the 
Texas legislature for its Gulf ports. 

"Another law sent to my office for signature was found on examination to 
contain a negative which made the act exactly contrary to what it was intended 
to be. This bill was only one of fifteen others which were returned to the legis- 
lature by me for correction in particulars more or less important. Two bills 
which were exact duplicates, each of the other, passed both Houses and came to 
my desk before the duplication was discovered. 

"I am informed that exactly the same thing happened this year in Pennsyl- 
vania. And in one instance a bill was passed amending another act which had 
been passed some days previous, and both the original act and the amendment 
were enrolled and reached my office about the same time. A number of bills 
passed both Houses without any enacting clauses — a matter absolutely req- 
uisite to their validity as laws, and in the Session Laws will be found a large 
number of resolutions authorizing corrections in a number of acts. 

"Notwithstanding the constitutional prohibition against special legislation, 
many acts were in fact special, although they have the form and appearance of 
being of general application. On the other hand, by reason of time taken up 
in discussing and passing worthless legislation, like the Chiropractic Bill, and 
the Pure Shoe Bill, legislation of the utmost importance was pushed over until 
the last days of the session, when there was not time for even a pretense of dis- 
cussion or deliberation, and accordingly failed of enactment. Among these 
important measures was a Grain Inspection Bill, the Kincaid Bridge Bill, a 
Collateral Inheritance Tax, a Recording Mortgage Tax Bill, and a bill pro- 
hibiting the foreclosure of mortgages, until the owner and holder should either 
pay, or show that he had paid, all taxes that might lawfully have been assessed 
against it from its date. 

"With all that, the Kansas legislature of 1913 was as efficient, as capable, as 
up-right and honest as any legislature that ever sat; it passed many wholesome 



APPENDIX B 647 

iaws. There was not a single suspicion of corruption. It was as good a legisla- 
ture as can be gotten together under the bicameral system, but it requires much 
more than honesty to make laws for a State. Effective work in a legislature can 
only be done by a man of experience, notwithstanding the best of intentions. 
A district can be effectively represented only by a man who is able to accomplish 
results. 

"'What is commonly called the technical part of legislation, is incomparably 
more difficult than what may be called the ethical. In other words it is far easier 
to conceive justly what would be useful law, than so to construct that same law, 
that it may accomplish the design of the law giver.' 

"To illustrate this, take the case of the member who is quoted as saying, 
'When I came to the legislature I introduced a bill to prohibit the manufacture 
of filled cheese. It would have done it all right, but it would have prevented 
the manufacture of all other kinds of cheese too.' Or take the case just cited of 
the act, which provides for the 'plastering of carpets and furniture.' 

"But these are simply examples of unintentional, legislative humor. The 
serious side of the question appears, if one visit our state library, with its hun- 
dreds of volumes of court decisions made necessary by the work of inexperienced 
and untrained legislators. 

"I have seen bills carefully drawn by experts after months, or perhaps years 
of the most painstaking and careful study cf the subject, amended on the floor 
of both House and Senate in a rapid-fire sort of way, by men who had never given 
an hour's consideration to the subject-matter, and in the end have seen what 
might have been a useful law, either weighted down with amendments which 
caused friends of the original bill to vote against it, or have seen the bill become a 
law, so amended as to be unrecognizable by the man who introduced it, and its 
effectiveness frittered away, because some Senator or Representative possessed 
an inordinate desire to put himself in evidence, no matter how. 

"The Anti-pass Law, now upon our statute books, was re-written on the 
floor of the Senate — a make-shift sort of a measure was reported for passage and 
an attempt made to 'railroad' it through. A minority became acutely alive 
to the situation and, helped by the presence of a crowded Senate, they sub- 
stituted, section by section, until the measure became a splendid enactment. 
It was a dangerous way to pass a measure of so great importance, but the ex- 
igency of the moment demanded heroic action. 

"If it was the intention of our Constitution makers that the bicameral system 
of legislation, which now prevails, should be a system both representative and 
deliberative, they have utterly failed to secure that result under the present 
system. As a matter of fact, the average member of the legislature, and espe- 
cially of the House of Representatives, does not even represent the people oi his 
own little district. And unless he happens to be one of the very few leading 
spirits who run the legislature, about all the new member is good lor is to vote 
as he is told. 

"Those of us who have legislative experience, know that this is true in varying 
degrees of almost every State legislature, and 1 am told that it is largely U 
the membership of our National Congress, and yet so strong is the 
for ancient institutions, that many well-intentioned men to say nothing about 
the politicians — regard any proposition to do away with this inefficient and un- 
wieldy system as little short of treason, and denounce a proposal for the sub- 
stitution in its stead of a single legislative body; so small in number that the 
people may know whom they have selected and whom they have trusted, and 
having so few to watch, that they can watch them, These men are honestly con- 
servative, and are hoping against hope for the realisation of an ideal w hich the 

realities of experience have demonstrated to /><• impossible, ami these conservative 
gentlemen sometimes become classical in their diction and charge those of us 

who are disposed to be progressive, with attempting to establish an oligarchy. 

"One of the stock arguments in favor of the bicameral system is that the 

second chamber is a valuable check on bad legislation because there arc 

through which the bill must pass, from personal legislative experience. I know 
how farcical this contention is. About the only purposes I have ever been able 



648 APPENDIX B 

to see for the two-house system is, that it enables a legislator to fool his con- 
stituents, by getting a measure demanded or promised them through his branch 
of the legislature, and then using every effort to have it killed in the other branch. 
Six years ago a resolution passed the House by a goodly two-thirds majority, 
submitting to the voters the Equal Suffrage amendment to our Constitution. 
Before the resolution reached the Senate, fifty per cent of the House members 
were importuning their senators to defeat the resolution, and the Senate, in duty 
bound, followed their importunities. The same impediment which the existence 
of two chambers offers to bad measures, also applies to good ones. 

"Let us take the last session of the Kansas legislature. So far as I now recall, 
no very objectionable bills passed either House, but a number of very meritorious 
bills were actually defeated after having passed one chamber or the other. For 
example: The resolution to submit an Initiative and Referendum amendment 
to the Constitution, promised by all parties, passed the Senate and failed to get 
the necessary two-thirds vote in the House, because the minority members of 
the House preferred to engage in the pass- time of playing politics. A Recording 
Mortgage Tax law was passed by both Chambers, went to Conference, and 
failed because the Conference Committees would not agree. The Grain In- 
spection law suffered the same fate. The Kincaid Bridge Bill — one of the most 
meritorious bills introduced during the session, passed the House and was lost 
in the Senate. The Collateral Inheritance Tax Bill passed the House and was 
defeated in the Senate. Several other meritorious measures failed to become 
laws, because of a feud between a senator and a leading member of the House, 
to which in a sort of an unconscious way, the members of the House and Senate 
became partisans. And that sort of thing has happened in other legislatures to 
my certain knowledge, so that if the bicameral system serves as a check to bad 
legislation, it also serves as a check to good legislation. 

"It is claimed for the bicameral system that it destroys the evil effects of 
sudden and strong excitement and of precipitate measures, springing from 
passion, caprice, personal influence and party intrigue. There are possibly occa- 
sions when the bicameral system would be advantageous in this respect, but 
they are not met with in the study of a normal legislative session. To be a 
check upon such excitement, passions and intrigues, it is important that the 
second House be not subject to the same influences. If we take the New York 
legislature as an example, there appears to be little force in this argument, for 
with no cause for sudden excitement, passion, or intrigues, in the year 19 10, one 
hundred and thirty bills were recalled from the Governor by the legislature of 
that State after having passed both Houses. 

"Then there is the argument that it is more difficult to corrupt or wrongfully 
influence two bodies than one. The test of legislative efficiency is the ability to 
effect positive enactments. A good measure opposed by special or predatory 
interests, may as easily be defeated under the bicameral system as under a one- 
house system, because all that is necessary, is for the opponents of the measure 
to control one House, and in cases of that kind, the special interest has two 
chances with the bicameral system to one with the other. Indeed the lobbyist 
and representative of corporations first attempt to defeat a measure objec- 
tionable to them in the committee, and if they fail there, then they concentrate 
their assault on the members of whichever House there appears to be the best 
chance of success in blocking the proposed legislation. 

"Then again it is said that under the bicameral system there will be a jealous 
and critical revision of all proposed laws by a rival body of men, though it would 
be difficult to produce evidence to show when they are either rival or jealous. 

"Generally speaking, the two Houses do a lot of trading; the first House in 
order to get anything, accepts the amendments of the second, and vice versa. 
In actual practice, the two Houses seldom seek a middle ground, at least not by 
formal methods. Two considerations do not necessarily mean a double con- 
sideration and two hasty considerations may not be as good as one thorough one. 
There is a tendency to assume that a subject has been considered in the other 
House, when the consideration there has been very inadequate, or sometimes 
one House hastily passes a bill, with the expectation, that the other House will 



APPENDIX B 649 

deal with it more carefully; and so there is frequently a shifting of responsibility 
from chamber to chamber. It is customary for amendments of the second 
House to be accepted without question. It is also customary to advance bills 
advocated by the party leaders. Important measures are determined upon by 
the party leaders, and upon these the second chamber is of little additional 
usefulness in furnishing consideration. 

"Toward the close of each session, a committee on revision of the calendar is 
appointed. The membership of this committee is always dictated by the party 
leaders and they absolutely determine what bills shall be considered, and the 
order in which they shall be considered. 

"This committee usually consists of three in the Senate, and five in the House, 
and these eight men during the last week of the session, when almost fifty per 
cent of the bills are passed, absolutely dictate what enactments shall comprise 
one-half of the laws upon our statute books. The committee becomes in reality, 
a bicameral legislature of three and five members. And the House, in order to 
get its bills passed by the Senate, accepts Senate bills; and the Senate in order 
to get its bills passed by the House, accepts House bills. 

"Those of us who have had legislative experience, are fully aware that many 
an important bill has been killed in one House or the other, just because of a 
feeling that the Senate was killing House bills too carelessly; or that the House 
was killing Senate bills with too great frequency. As for being a deliberative 
body, I have yet to see a State legislature that could be so classed. 

"And pertinent to this remark is the criticism which I take from the Saturday 
Evening Post of August 9th, 1913. The Post says: 

"'The Illinois Legislature was in session twenty- three weeks. A contem- 
porary on the ground reports that in the first twenty-one weeks it passed one- 
quarter of the bills that it finally made into law and in the last two weeks it 
passed three-quarters of them. That is the inevitable legislative program; 
two or three months of preliminaries, appointing committees, playing politics, 
squabbling over points of party advantage; then two or three weeks of earnest 
effort to get the machinery really started; then about ten days of frenzied haste, 
during which a large part of the important legislation is actually accomplished. 

"'A body constituted as our legislatures are, cannot possibly work any other 
way. There would be exactly the same result with a bank or a railroad, if once 
in two years the stockholders elected a large body of directors who mostly knew 
nothing in particular about banking or transportation, who were sharply divided 
by opposing professional interests and who were to remain in session only three 
months. But the bank or railroad wouldn't last long under the guidance of such 
a board. 

"'We legislate in convulsions when we legislate at all. The organism is so 
constituted that it must have a fit or lie dormant. 

" : It is not a representative system. The people of Illinois do not conduct 
their personal affairs in rare bursts of frenetic energy divided by long periods of 
torpidity. No farmer hires thirty men to debate about small grain from July 4th 
to July 30th and then harvest the oats on the ,-; is i- Why should he regard a 
legislature which operates that way, as representing him?'" 

"In my message of March 10, 1913, I proposed to the Kansas legislature the 
substitution for the present system, of a one-house legislature consisting of eight 
and not to exceed sixteen members. My most violent critic has proposed a one- 
house legislature composed of thirty. 1 still believe that the Dumber should 
not exceed sixteen. One-half of them might be elected from districts and one- 
half of them at large, or they might all be nominated by districts ami elected 

at large, with provisions for recall, and tin- initiative and referendum, which 
are imperative. These legislators should be elected for terms oi four years 
each, with provision for expiration in rotation, in order to secure stability and 
experience. 

"I further believe that these legislators should be nominated and elected upon 
a non-partisan ballot, like that which has recently been provided in Kansas for 
the election of judges; or if not that, then with provision for minority representa- 
tion. 



650 APPENDIX B 

"They should be paid salaries which would enable them to give their time to 
the study of State affairs. They should meet at such intervals as the business 
of the State demanded and should have power to employ expert assistance in 
the drafting of laws. 

"Just at this time the necessity for such a legislative body is quite apparent 
in Kansas. Such a legislature would enable us to handle the gas situation; it 
would have enabled us to handle the situation with reference to the inspection 
of grain; it would have enabled us to handle without trouble, the difficulties 
arising from the destruction of our twine plant at the Kansas Penitentiary. 
It would enable us to provide aid for those counties which have been sorely 
afflicted by the drouth; and so every year, such a body able to meet xvithout 
large expense whenever necessity required, would be a good business proposition 
for the people of the State. As it is, one co-ordinate branch of the State govern- 
ment is absolutely abandoned for a whole biennium, unless the legislature is 
invoked in an expensive, extraordinary session by the Governor. It is as if the 
head of an important department of some other big business should give only 
fifty days every two years to its management. 

"In my judgment, such a legislature as I am advocating, would give us fewer 
but better laws; it would give us laws that would need less interpretation from 
the courts and accordingly give us less litigation. It would be representative. 
As a matter of fact, under the present system, the sovereign voter helps elect 
one representative out of one hundred twenty-five, and the one senator out of 
forty, and if his senator and representative happen to disagree, he is not rep- 
resented at all. Under the one-house system, elected as I have proposed, each 
voter would cast his vote for either eight or all sixteen members, according to 
the method adopted. He can watch eight or sixteen, and if he is alert, he may 
know from the daily newspapers on which one of them to fix the responsibility 
■ for any particular action, but he cannot keep track of 165. 

"Democracy does not mean numbers, but that which is more flexible, the 
more responsive to the will of the people is the more democratic. Eight or 
sixteen men, who sense their responsibility, and accountability, and who — so to 
speak — feel the grip of an exacting public, will be far more democratic, far more 
solicitous of public approval, and much more sensitive to public criticism, than 
they would have been, had they been but a part of a legislature of two Houses 
of 165 members. 

"And this brings me to the matter of publicity. I would have published and 
distributed at State expense, a journal of the proceedings of this House so that 
every voter in the State, if he care, may know just what is going on. 

"I have not at any time proposed, as I have been credited with doing, com- 
mission form of government for the State. When it is attained, I think it must 
be step by step, and so my proposition is for a small, single-house legislature as 
the firs;, step. If it prove a success, it will then be time to consider the question 
of taking another step. What we now want is a legislature in which there will 
be real deliberation and real responsibility, and real accountability. What we 
want is legislation by members adequately equipped, and adequately paid to 
legislate. Men who will promulgate new law only when needed. We want a 
better system which will bring into service better, though fewer men, and give 
us better, though fewer laws. 

"Since this address was prepared, I have received from Richard S. Childs, 
secretary of the National Short Ballot Organization, the result of his examination 
of the manuscript, for a bulletin shortly to be issued by the Kansas Legislative 
Reference Library on this subject. This bulletin embodies all the available 
literature on this subject, both favorable and unfavorable. A summary of Mr. 
Childs' conclusions is as follows: 

"First. Membership in a small one-house legislature would be more attractive 
to first-class talent, than membership in Congress and would rank not far below 
the Governorship itself. 

"Second. This plan would bring the legislature nearer to the people. This 
statement contradicts the first impression, but it is true nevertheless. The 
legislature of to-day is as remote from the people as it is possible to be. The 



APPENDIX B 651 

people may rage and storm over some bill that has been passed or turned down, 
but the individual members of the legislature are shielded from blame, by the 
simple fact that each member is safely lost in the shuffle. In a legislative body 
with sixteen members, the newspapers would publish the roll calls on all im- 
portant bills and the people would have a clear picture of the kind of man who 
was representing them and the way he was behaving. 

"Third. The proposition would make the legislature more responsive and 
obedient to public opinion. 

"Fourth. A sixteen-member legislature would be harder to corrupt. This 
also contradicts first impressions. These are many who believe that the more 
people there are to pass upon a measure, the harder it is to pass a bill by bribery. 
Just the reverse is true. The more conspicuous a man is before the public, and 
the more clearly his responsibility is appreciated by the people, the harder it is 
for him to go wrong. Turn the limelight strong upon a man and make him feel 
that he is performing before a big and important audience, and he will be hard 
to corrupt. Light is as salutary in politics as in hygiene. 

"What reason is there, may I ;,sk, for adhering to antiquated methods in 
conducting the great business of Che State, when in every other department of 
human activity, newer, more efficient and more economical methods, have been 
and are constantly being adopted? 

"Reasonable conservatism is a good thing, but let it be progressive conserva- 
tism. Let us adopt, in the management of the public business, the progressive 
policies that every other big business is adopting in the conduct of its affairs. 

"As I have already said, I am not advocating at this time the adoption of a 
commission form of government for the State, but the adoption of a small, 
one-house legislature, retaining the present separation of legislative, executive, 
and judicial powers. If this step shall prove successful, we may then, if necessary, 
consider further changes. 

"I have not attempted to hurry the people of my State into the adoption of 
any proposition. I have asked them to take it into consideration and discuss 
it for the next two years. I do not want to make it a party issue. I want it dis- 
cussed and acted upon as an economic question after full and fair discussion by 
the men and women of all parties. I believe that such an amendment to our 
constitution will be submitted and adopted within the next few years, and that 
it will give to the people that which they never had before in any true sense — a 
legislature that is in a true sense representative and one which will be quickly 
responsive to the will of the electorate and accountable to the public in the most 
exacting sense." 



THE SHORT BALLOT 

A MOVEMENT TO SIMPLIFY POLITICS 

By Richard S. Childs 
{Reprinted in part from "The Outlook" July 17, iqpq, by permission) 



Do you know that ours is the only habitually misgoverned democracy? Other 
democracies, Canada and the English, French and German cities, are generally 
well-govcmed, many of them splendidly governed. Their councils and legisla- 
tures stay clean for decades automatically without need for public uprisings to 

clean them out. True they sometimes sutler from graft but it is 1 eal. haphazard 
and unorganized like graft in business life. But with us misgO\ eminent is 
universal and ever-present. Every State and every City is constantly at war 
with it. The brand-new City of Gary begins to grapple with it as soon as there 
is an election. And the success of the forces of righteousnes is always temporary 
like sweeping back Hooding water with a broom. We say truly "A reform 



652 APPENDIX B 

administration is never re-elected." Good administration is actually abnormal 
in American cities and states. Maladministration is the normal. 

This condition, unique among democracies, indicates the existence of some 
peculiarity in our system of government as the underlying cause. 

ANALYSIS OF PRESENT CONDITIONS 

Blind Voting 

Starting at the broad base of our structure, the voters, we notice one unique 
phenomenon which is so familiar to us that we usually overlook it entirely — that 
is our habit of voting blindly. Of course intelligent citizens do not vote without 
knowing what they are doing. Oh, no ! You, Mr. Reader, for instance, you vote 
intelligently always! Of course you do! But whom did you vote for for Sur- 
rogate last time? You don't know? Well then, whom did you support for State 
Auditor? For State Treasurer? For Clerk of the Court? For Supreme Court 
Judge? And who is your Alderman? Who represents your district at the State 
Capitol? Name, please, all the candidates you voted for at the last election. 
Of course you know the President and the Governor and the Mayor, but 
there was a long list of minor officers beside. Unless you are active in politics I 
fear you flunk this examination. If your ballot had by a printer's error omitted 
the " State Comptroller" entirely, you would probably not have missed it. You 
ignored nine-tenths of your ballot, voting for those you did know about and 
casting a straight party ticket for the rest, not because of party loyalty, but be- 
cause you did not know of anything better to do. You need not feel ashamed of 
it. Your neighbors all did the same; ex-President Eliot of Harvard, the "ideal 
citizen," confessed in a public address recently, that he did it, too. It is a typical 
and universal American attitude. We all vote blindly. Philadelphia has even 
elected imaginary men. The intelligence of the community is not at work on 
any of the minor offices on the ballot. The average American citizen never 
casts a completely intelligent vote. 

Do you know the name of the new State Treasurer just elected?. . . No 87% 

Do you know the name of the present State Treasurer? No 75% 

Do you know the name of the new State Assemblyman for this dis- 
trict? No 70% 

Do you know the name of the defeated candidate for Assemblyman 

in this district? No 80% 

{Knew both of above 16%) 

Do you know the name of the Surrogate of this County? No 65% 

Do you know the name of your Alderman? No 85% 

Do you know whether your Alderman was one of those who voted 

against the increase in the Police Force last year? No 98% 

Are you in active politics? No 96% 

The intelligence (?) of voters in the most independent Assembly District in 
Brooklyn. Data collected immediately after election, 1908. 

Should We Blame the Voters 

This is not all the fault of the voter. To cast a really intelligent ballot from 
a mere study of newspapers, campaign literature and speeches is impossible be- 
cause practically nothing is ever published about the minor candidates. And this 
in turn is not always the fault of the press. In New York City the number of 
elective offices in State, City and County to be filled by popular vote in a cycle of 
four years is nearly five hundred. In Chicago the number is still greater. Phil- 
adelphia, although smaller than either city, elects more people than either. 
No newspaper can give publicity to so many candidates or examine properly 
into their relative merits. The most strenuous minor candidate cannot get a 



APPENDIX B 653 

hearing amid such clamor. And the gossip around the local headquarters being 
too one-sided to be trusted by a casual inquirer, a deep working personal ac- 
quaintance with politics, involving years of experience and study, becomes nec- 
essary before a voter can obtain the data for casting a wholly intelligent ballot. 
Plainly the voter is over-burdened with more questions than he will answer 
carefully, for it is certain that the average citizen cannot afford the time to 
fulfill such unreasonable requirements. The voters at the polls are the founda- 
tion of a democracy and this universal habit of voting blindly constitutes a huge 
break in that foundation which is serious enough to account for the toppling 
of the whole structure. Let us see if we can trace out a connection between this 
as a cause and misgovernment as the effect. 

Blind Voting Leads to Government by Politicians 

No one will deny that if nine-tenths of the citizens ignored politics and did 
not vote at all on election day, the remaining tenth would govern. And when 
practically all vote in nine-tenths ignorance and indifference, about the same 
delegation of power occurs. The remaining fraction who do give enough time 
to the subject to cast an intelligent ballot, take control. 

That fraction we call "politicians" in our unique American sense of the word. 
A "politician" is a political specialist. He is one who knows more about the 
voter's political business than the voter does. He knows that the coroner's term 
will expire in November, and contributes toward the discussion involved in 
nominating a successor, whereas the voter hardly knows a coroner is being 
elected. 

The politicians come from all classes and ranks and the higher intelligence of 
the community contributes its full quota. Although they are only a fraction of 
the electorate they are a fair average selection and they would give us exactly 
the kind of government we all want if only they could remain free and independ- 
ent personal units. But the impulse to organize is irresistible. Convenience 
and efficiency require it and the "organization" springs up and cements them 
together. Good men who see the organization go wrong on a nomination con- 
tinue to stay in and to lend their strength, not bolting until moral conditions 
become intolerable. Were these men not bound by an organization with its 
social and other non-political ties, their revolt would be early, easy and effective 
and every bad nomination would receive its separate and proportionate punish- 
ment in the alienation of supporters. 

Politicians Can't Exclude Grafters From Their Ranks 

The control of an active political organization will gravitate always toward a 
low level. The doors must be open to every voter — examination of his civic 
spirit is impossible — and greed and altruism enter together. Greed lias most to 
gain in a factional dispute and is least scrupulous in choice of methods. The had 
politician carries more weapons than the politician who hampers himself with a 
code of ethics one degree higher. Consequently corruption finally dominates 
any machine that is worth dominating and sinks it lower and lower as worse 
men displace better, until the limit of public toleration is reached and the ma- 
chine receives a set-back at election. That causes its members to clean up. dis- 
credit the men who went too far. and restore a standard high enough to win — 
which standard immediately begins to sag again by the operation oi the same 
natural principle. 

Reformers in our cities have given up the endeavor to maintain pure political 
organizations ami elect reform administrations. A typical experience is that of 
the Citizens' Union of New York, whose leaders have always been sincerely 
bent on improving the condition of polities. The Union acquired power enough 
to become an important factor in elections. After the fust such election, small 
political organizations which had aided toward the victory rushed in, clamoring 

tor their share of the plunder. For a term or two the reformers were able to 
resist the pressure. Nevertheless the possession of power by their party inev- 



654 APPENDIX B 

itably attracted the grafters; they found themselves accepting assistance from 
men who were in politics for what there was in it, men who wanted to use the 
power and patronage that lay at hand unutilized, and it was clear that those 
men would in time, working within the Union, depose the original heads of the 
party and substitute "more practical" leaders of their own kind, until in time 
the Citizens' Union would itself need reforming. So the Union retired from the 
field as a party, broke up the district organizations which had yielded to corrup- 
tion and became exclusive in its government in order to preserve its purity of 
purpose. 

It is obvious that most political parties do not commit suicide to evade such 
internal contamination and lapse of principle. 

Theoretically there is always the threat of the minority party which stands 
ready to take advantage of every lapse, but as there is no debate between minor 
candidates, no adequate public scrutiny or comparison of personalities, the 
minority party gets no credit for a superior nomination and often finds that it 
can more hopefully afford to cater to its own lowest elements. In fact, it may 
be only the dominant party which can venture to affront the lowest elements 
of its membership and nominate the better candidate. 

Misgovernment the Normal Result of Government by Politicians 

The essence of our complaint against our government is that it represents 
these easily contaminated political organizations instead of the citizens. Nat- 
urally! When practically none but the politicians in his district are aware of his 
actions or even of his existence, the office-holder who refuses to bow to their 
will is committing political suicide. 

Sometimes the interests of the politician and the people are parallel, but 
sometimes they are not and the office-holder is apt to diverge along the path of 
politics. An appointment is made, partly at least, to strengthen the party 
since the appointee has a certain following. A bill is considered not on its 
simple merits but on the issue — "Who is behind it?" "If it is Boss Smith of 
Green County that wants it, whatever his reasons, we must placate him or risk 
disaffection in that district." So appointments and measures lose their original 
and proper significance and become mere pawns in the chess game of politics 
which aims to keep "our side" on top. The office-holders themselves may be 
upright, bribe-proof men — they usually are, in fact. But their failure to dis- 
regard all exigencies of party politics constitutes misrepresentative government 
and Boss Smith of Green County can privately sell his influence if he chooses, 
whereby the public is in the end a heavy sufferer. 

Summary of the Analysis 

Thus the connection between the long ballot and misgovernment is estab- 
lished: By voting the long ballot blindly, we entrust large governing power to 
easily-contaminated organizations of political specialists, and we must expect 
to get the kind of government that will naturally proceed from their trusteeship. 

Every factor in this sequence is a unique American phenomenon. The long 
ballot with its variegated list of trivial offices is to be seen nowhere but in the 
United States. The English ballot never covers more than three offices, usually 
only one. In Canada the ballot is less commonly limited to a single office, but 
the number is never large. To any Englishman or Canadian our long ballot 
is astonishing and our blind voting appalling. A Swiss would have to live four 
hundred years to vote upon as many men as an American undertakes to elect 
in one day. The politicians as a professional class, separate from popular leaders 
or office-holders, are unknown in other lands and the very word "politician" 
has a special meaning in this country which foreigners do not attach to it. And 
government from behind the scenes by politicians, in endless opposition to 
government by public opinion, is the final unqiue American phenomenon in the 
long ballot's train of consequences. 



APPENDIX B 655 

II 

The Voting That Is Not Blind 

The blind vote of course does not take in the whole ballot. Certain con- 
spicuous offices engage our attention and we all vote on those with discrimination 
and care. We go to hear the speeches of the candidates for conspicuous offices, 
those speeches are printed in the daily papers, and reviewed in the weeklies, 
the candidates are the theme of editorials and the intelligent voter who takes 
no part in politics, votes with knowledge on certain important issues. 

In an obscure contest on the blind end of the ballot merit has little political 
value, but in these conspicuous contests where we actually compare man and 
man, superior merit is a definite asset to a nominee. Hence in the case of an 
obscure nomination the tendency is automatically downward, but in a con- 
spicuous nomination the tendency is upward. 

Accordingly while we elect Aldermen who do not represent us and the State 
Legislatures which obey the influences of unseen powers, we are apt to do very 
well when it comes to the choice of a conspicuous officer like a President, a 
Governor, or a Mayor. For Mayor, Governor or President we are sure to secure 
a presentable figure, always honest and frequently an ab?e and independent 
champion of the people against the very interests that nominated him. We 
are apt to re-elect such men, and the way we sweep aside hostile politicians 
where the issue is clear shows how powerfully the tide of our American spirit 
sets toward good government when the intelligence of the community finds a 
channel. 

And so in these conspicuous offices — those for which we do not vote blindly — 
we secure fairly good government as a normal condition, considering that the 
organized and skillful opposition which always faces us occupies a position of 
great strategic advantage in possession of the nominating machinery. 

Ill 

THE REMEDY 

We cannot hope to teach or force the entire citizenship to scrutinize the long 
ballot and cease to vote blindly on most of it. The Mountain will come not to 
Mahomet; Mahomet then must go to the Mountain. 

First. — We must shorten the ballot to a point where the average man will vote 
intelligently without giving to politics more attention than he does at present. 
That means making it very short, for if the number of these simultaneous elec- 
tions is greater than the bulk of the citizens care to keep track of, then we have 
government by the remaining 40 per cent., or 20 per cent, of the citizens — and 
no matter whom we believe to be at fault, that plan in practice will have re- 
sulted in oligarchy and be a failure. The test for shortness is to inquire when a 
given number of offices are filled by election whether the people vote blindly or 
not on any one of them. For if they begin to require "tickets" ready- made for 
their convenience they are sharing their power with the ticket makers — and 
democracy is fled! 

Second. — We must limit the elective list to offices that are naturally con- 
spicuous. The little offices must either go off the ballot ami he appointed, no 
matter how awkwardly, or they must be increased in real public importance by 
added powers until they rise into such eminence as to he visible to all the people. 
The County Surveyor, for instance, must go, for the electorate will not bother 
with such trifles whether the ballot be short or not. 

Why indeed should 50,000 voters all he asked to pause for even a few minutes 
apiece to study the relative qualifications oi Smith and Jones for the petty 

$i,ooo-a-year post of County Surveyor? Any intelligent citizen may properly 

have bigger business Oil his hands! 

And the Alderman? we can't abolish him perhaps, hut we can increase hu 
power by enlarging his district and Lengthening his term and making his board 



656 APPENDIX B 

a small one. Till then how can we make people in Philadelphia agitate them- 
selves over the choice of a Common Councilor who is only one-one hundred and 
forty- ninth of one-half of the city legislature! 

That candidates should be conspicuous is vital. The people must be able to 
see what they are doing; they must know the candidates — otherwise they are 
not in control of the situation, but are only going through the motions of con- 
trolling. 

It may be objected that to take the minor offices off the state ticket for in- 
stance and make them appointive by the Governor would be giving too much 
power to the Governor. Well, somebody, we rarely know who, practically 
appoints them now. 

To have them appointed by a recognized legally-constituted authority is 
surely better than to have them selected by a self-established coterie of politi- 
cians in a convention committee room. There is no great peril in concentrating 
power, provided we watch what is done with it. (Suppose we were electing by 
popular vote not only the President and Vice-President of the United States, 
but the cabinet, the Supreme Court and the other Federal Judges, the P'ederal 
marshals, district-attorneys and postmasters! Can you see how our American 
political superstitions would block all efforts to secure the present conspicuous 
responsibility?) 

How an overdose of electing creates oligarchy is illustrated in Tammany Hall, 
which would appear to be in its form of internal government the most perfect 
democracy conceivable. But the primary ballot contains from 300 to 1,000 
names and bossism is thereby intrenched absolutely. 

The Short Ballot in Operation 

Fighting misgovernment now is like fighting the wind. We must get on a 
basis where the good intentions of the average voter find intelligent expression 
on the entire ballot so as to produce good government as a normal condition, 
i. e., good government which regularly gets re-elected as a matter of course by 
overwhelming majorities without a great fight. Impossible in this country? 
No! Galveston has it with its government by a Commission of Five. This 
Commission has without scandal carried through tremendous public improve- 
ments (raising the ground level to prevent another flood), and at the same time 
has reduced the public debt and the tax rate. That is good administration. 
More than that, it gets re-elected by overwhelming majorities and has not been 
in peril at any election. The "Old Crowd" that misgoverned this city for years 
holds only 20 per cent, of the vote now, and concedes without contest the re- 
election of three of the five good commissioners. And the total campaign ex- 
penses of electing the right men are only $350. 

It has been thought that this was the fruit of correct organization, analogous 
to a business corporation with its board of directors. But there are many other 
elected commissions and boards in the United States — "County Commissions," 
"Boards of Education," "Trustees of the Sanitary District," "Boards of Asses- 
sors," etc. — and they are not conspicuously successful, but in fact such organiza- 
tion often serves only to scatter responsibility and shelter corruption. No! 
Good government is entirely a matter of getting the right men in the first place. 
Nothing else is so vital. No system, however ingenious, will make bad men give 
good government or keep good men from getting superior results. To get the 
right men is first of all a matter of arranging for the maximum amount of con- 
centrated public scrutiny at the election. 

Were it otherwise, we would find misgovernment in British cities which, ex- 
cept for this feature are ideally organized from an American grafter's point of 
view. The British city authorities are hampered most unjustly by a hostile 
House of Lords, their machinery of government is ancient and complicated, and 
their big councils with committees exercising executive management over the 
departments, with ample opportunity for concealment of wrongdoing, with no 
restraining civil service examinations, with one-tenth of the laboring population 
on the municipal pay rolls would apparently provide an impregnable paradise 



APPENDIX B 



657 



for the American politician of the lowest type. But the ballot for an English 
municipal election can be covered by the palm of the hand. It contains usually 
the names of two candidates for one ofhce, member of the Council for the ward. 
(The Council elects the Mayor, the Aldermen and all other city officers.) Blind 
voting on so short a ballot is hardly conceivable. Every voter is a complete 
politician in our sense of the word. The entire intelligence of the community 
is in harness, pulling, of course, toward good government. An American ward 
politician in this barren environment, unaided by any vast blind vote, could only 
win by corrupting a plurality of the whole electorate, a thing that is easily sup- 
pressed by law even if it were not otherwise a manifest impossibility. So there 
are no ward politicians in England, no professional politics, and misgovernment 
is abnormal. 

BALLOT PAPER 



1. 


NETTLEFOLD. 

(John Sutton Nettlefold, Winter- 
bourne, Edgbaston Park Road, 
Edgbaston, Gentleman.) 




2. 


TUNBRIDGE. 

(William Stephen Tunbridge, Rock- 
lands, Woodbourne Road, Edg- 
baston, Solicitor.) 





This is a typical official ballot (actual size) for an English election. It shows 
the names of two candidates for a single office — Councilor from the ward. The 
people simply make one choice, and accordingly know just what they are doing 
on election day. The scrutiny of the people thus concentrated bars out unfit 
candidates almost automatically. 

Similarly Galveston concentrated the attention of the voters sharply upon 
candidates for only five offices, all very important. The press could give ad- 
equate attention to every one and in consequence every intelligent voter in his 
easy chair at home formed opinions on the whole five and had a definite notion 
of the personality of every candidate. In such a situation the ward politician 
had no function. There was no ignorant laisscz-fairc, no mesh of detail for him 
to trade upon. He became no more powerful than any other citizen, and his 
only strength lay in whatever genuine leadership he possessed. Moreover, if he 
nominated men who could stand the fierce limelight and get elected, they would, 
ipso facto, probably be men who would resist his attempt to control them after- 
ward. Or if they did cater to him it would be difficult to do his bidding right in 
the concentrated glare of publicity where the responsibility could be and. what 
is much more vital, would be, correctly placed by every voter. And so the pro- 
fession of politics went out of existence in Galveston and the ward politician who 
had misgoverned the city for generations went snarling into oblivion. 

The Galveston plan might be better yet if the Commissioners were elected 
one at a time for long terms in rotation. Then the public scrutiny at election 
time would focus still more searching!}' on the candidates and merit would in- 
crease still further in value as a political asset. 

"Politics," seeking re-entrance into Galveston, would make department 
heads, etc., elective ("make them directly responsible to the people and let 
the pee-pul rule"). 

Suppose that they should increase the Commission to thirty members elected 
"at large" with variegated powers and functions. Straightway tickets, cooked 



658 APPENDIX B 

up by "leaders," would reappear, and the voter, facing a huge list of names, 
most of which he had hardly heard of would impotently "take program" and 
concede control to a little but active minority, the politicians. 

But suppose again that the enlarged commission be elected not "at large," 
but by wards, one member to a ware. The voter again has only one decision 
to make, instead of thirty. Newspaper publicity is weakened by division, but 
this weakness is now repaired by neighborhood acquaintance and the candidate's 
opportunity to make himself personally known to a large portion of his constit- 
uency. Once more, the voter registers an opinion instead of blindly ratifying 
the work of a party organization. The ward politician is again left without a 
function. His popularity may avail in certain wards, and he may thus elect 
some of the commission, but he will not have from any citizen who is in- 
telligent enough to do his own thinking that blind acquiescence which in other 
conditions had been the bedrock of his power. 

Conclusion 

Just how we are to get rid of the great undigested part of our long ballot is a 
small matter so long as we get rid of it somehow. Govern a city by a big Board 
of Aldermen, if you like, or by a Commission as small as you dare make it. Re- 
adjust State constitutions in any way you please. Terms of tenure in office can 
be lengthened. Many officers, now elected, can be appointed by those we do 
elect. But manage somehow to get our eggs into a few baskets — the baskets 
that we watch. 

For remember — we are not governed by public opinion, but by public-opinion- 
as - expressed -through -the - pencil - point - of- the -Average -Voter- in - his - election- 
booth. And that may be a vastly different thing ! Public opinion can only work 
in broad masses, clumsily but with tremendous force. To make a multitude of 
delicate decisions is beyond its blunt powers. It can't play the tune it has in 
mind upon our complicated political instrument. But give it a keyboard simple 
enough for its huge, slow hands, and it will thump out the right notes with 
precision ! 

There is nothing the matter with Americans. We are by far the most in- 
telligent electorate in the world. We are not apathetic. Apathy is a purely 
relative matter depending on how much is asked. Ask much of the people and 
you will see more apathy than if you ask little. If the people of Glasgow were 
asked to attend caucuses, primaries, conventions and rallies in support of the 
best candidates for Coroner, they too would stay home by their firesides and let 
the worst man have it. If they had our long ballot they would be in a worse 
mess than we are with it. And if we, on the other hand, could get their handy 
short ballot, we too would use it creditably. For our human nature is no worse 
than theirs. The Scotch immigrant in our midst is no more active a citizen than 
the rest of us. We are not indifferent. We do want good government. And 
we can win back our final freedom on a short ballot basis! 



INDEX 



Abbott, A. C, The Essentials of Suc- 
cessful Public Health Administra- 
tion, 439. 

Accounts. See Finance and Local 
Government. 

Adams, Henry C, on taxation in 
Civil War, in; Science of Finance, 

115. 
Adams, John, judicial appointments, 

285. 
Adams Express Company, lawsuit, 

21S, 534- , . 

Administration. See Various Adminis- 
trative Offices. 

Admission of new states. See States. 

Advisory court opinions, 284. 

Agriculture, education for, 403, 404, 
415; Western interests in, 569. 

Agriculture Committee in House, 66. 

Agriculture department, 9, 38, 194, 
196, 198, 200, 262, 264; Secretary, 
Reports, 417. 

Alabama, direct primary in, 306; 
franchise requirement, 303; rail- 
way law, 206 ; Republican delegates, 
553; Tax Commission, 529. 

Alaska, forest reserves in, 262; gov- 
ernment of, 245, 249, 250; in 
federal court district, 280; land 
reserves, 270; mineral reserves, 
265 ; purchase of, 266 ; woman 
suffrage in, 304. 

Albany (N. Y.), railway terminus, 534. 

Aldrich, Nelson B., on National 
Monetary Commission, 581, 582; 
Senator, 66, 67. 

Aldrich-Vreeland Act, 113. 

Aliens, protection of, 479. Sec also 
Immigration and Naturalization. 

Allen, Dr. William H., on public 
hygiene, 430-432 ; Civics and Health, 
430, 43 1 , 439 ; Efficient Democracy, q. 

Ambassadors. See Diplomatic service. 

Amendments, to federal constitution, 
8 °, 453, 456, 457; to state con 
stitutions, 300-302, 610. First ten, 

457, 458; Fifth, 104, 170, 395, 

458, 468, 471, 472, 480, soo, s^(\ 
S08, 513, 521; Sixth, 472; Tenth, 
134, 255, 458; Eleventh, 279, 280; 
Twelfth, n; Thirteenth, 250, 396, 



457, 459; Fourteenth, 47, 78, 372, 
395, 454, 457-402, 468-470, 474, 
477, 478, 481, 482, 486-488, 500, 
504, 506, 507, 510, 513, 521, 544, 
569; repeal, 455, 456; Fifteenth, 
203, 454, 456, 457, 460, 461; Six- 
teenth, 98-100, 462; Seventeenth, 
81, 462. 

American Academy of Political Science, 
Annals, 29, 30, 162, 258, 273, 295, 
357, 359, 360, 365, 386, 417, 439, 
451, 545, 625. 

American Association for Labor Legis- 
lation, Proceedings, 396. 

American Bankers' Association, 576, 
582. 

American Bar Association, 289, 295 ; 
Proceedings, 151. 

American Fair Trade League, policy, 
160. 

American Federationist, 578, 579, 590. 

American Federation of Labor, 576, 
578-580, 590; lawsuit, 150; school 
policy, 414. 

American Medical Association, Jour- 
nal, 439. 

American Political Science Review, 
301, 302, 303, 312; American 
Political Science Association, Pro- 
ceedings, 451. 

American Publishers' Association, 576; 
and Anti-Trust law, 157. 

American Railway Union, president, 
34 ;_ strike, 33. 

American Society of Mechanical En- 
gineers, Proceedings, 607. 

American Steel and Wire Company, 
lawsuit, 524, 525. 

American Year-Book, 365, 451. 554. 

Ames, H. Y., Proposed Amendments to 
the Constitution, 401. 

Andrews, John B., .1 National x 
of Labor Exchanges, 396. 

Anglo-Saxons, governmental coopera- 
tion, 575. 

Animal Industry, Bureau of, 104. [98 ; 
Report and Regulations, 

Annapolis (Md.), commercial conven- 
tion at, 1:0; naval academy, :>.;. 

Anti trust Laws. See Sherman Anti- 
trust law. 

Appeals, Circuit Court of, organisa- 
tion, 280; commerce cases in. 1:7; 



659 



66o 



INDEX 



and Federal Trade Commission, 

I 7 I ." 

Appointing power, of president, 14- 

16, 594, 595, 599; in consular and 
diplomatic service, 23, 24; Senate's 
coordinate power, 14, 83; of gov- 
ernors, 314-316, 601; of commis- 
sion government, 619. See also 
Civil Service. 

Apportionment, basis of, 47. 

Appraisers, general board of, 106. 

Appropriations, in Congress, 73 ; com- 
mittee for, 64, 86, 109; influence 
on party system, 66 ; Senate amend- 
ments, 82. 

Arbitration, federal, 27; treaties for, 
24, 84, 586; of labor disputes, 132- 
i34, 391-396. 

Archbald, Robert W., impeached, 83. 

Arizona, admission of, 250, 251; 
charities system, 434; direct pri- 
mary in, 306; forest reserves, 262; 
governor, 329, 624; recall in, 616; 
woman suffrage, 304. 

Arkansas, direct primary in, 306; 
swamp lands, 270. 

Army, of United States, administra- 
tion, 235-238; maintenance, 234; 
relation to government, 243; size, 
238. See also Militia. 

Articles of Confederation, state sov- 
ereignty in, 78 ; weakness of, 94. 

Ashland (Pa.), electric company, 356. 

Ashley, R. L., The American Federal 
State, 74. 

Associated Press, functions of, 39. 

Associations, to mold public opinion, 

575-. 

Atlantic Coast Line, suit against, 210, 
211,485. 

Attorney General, 2d state executive, 
320; executive powers, 219; rela- 
tion to anti-trust regulation, 170, 
172, 175, 179. 

Audit of federal taxation, 108, 109. 

Australia, adopts federal constitution, 
94; ballot system, 308-310. 

Austria-Hungary, ambassador to, 23; 
civil service in, 603 ; war on Servia, 
232. 

B 

Baldwin, Simeon E., on the Constitu- 
tion, 277; on law's delays, 339; 
American Judiciary, 277, 295, 339, 
340. 

Ballot, various forms, 307-309. See 
also Short Ballot. 

Baltimore (Md.), lawsuit in, 458; 
national convention, 556, 557. 



Baltimore and Ohio Railway, lawsuit, 

135, 511. 

Banking and Currency Committee, in 
House, 66. 

Bankruptcy, federal laws, 226-229, 
465, 513; Act of 1898, cited, 229. 

Banks, Act of 1914, 582; federal re- 
serve system, 113-115; national 
supervision of, 112; operations, 
1 1 2-1 15; state regulation of, 343- 
345 ; state taxes, 96 ; United 
States may not be taxed, 102, 278. 

Barnes, H. Edgar, and Milner, B. A., 
Selected Cases, 138, 162, 200, 217, 

365, 545- 
Bauer Chemical Company, lawsuit, 

156, 157- 
Beard, Charles A., views on elections, 
311; on Short Ballot, 622-624, 
651-658; American Government and 
Politics, 41, 74, 311; Readings in 
American Government, 91; "The 
Ballot's Burden," 622, 626; The 
Supreme Court and the Constitution, 

295- 

Beard, Charles A. and Shultz, Birl E., 
Documents on the Initiative and 
Referendum, 626. 

Belgium, neutrality violated, 232. 

Belknap, William W., impeached, 83. 

Bell Telephone Company, dissolves 
union with Western Union, 170. 

Benton, Thomas H., senator, 85. 

Berger, Victor, member of Congress, 72. 

Bergey, D. H., The Principles of 
Hygiene, 439. 

Beveridge, Albert J., views on Child 
Labor bill, 199; on seniority in 
Senate, 87. 

Bicameral legislatures, 77, 300; criti- 
cized, 643, 644, 647-649. 

Bill of Rights. See England. 

Bloomneld, Meyer, directs vocational 
bureau of Boston schools, 417. 

Blount, William, impeached, 83. 

Blue, L. A., The Governor, 339. 

Blue Sky Law, in Kansas, 345. 

Boston (Mass.), arbitration in, 393, 
394 ; commerce, 541 ; Finance Com- 
mission, 623; reform in, 580; 
vocational school bureau, 417. 

Boston Beer Company, lawsuit, 502. 

Bourne, Jr., Senator J., Address, 625.^ 

Bowman, H. M., Administration in 
Iowa, 451. 

Boycott, and the Clayton Act, 149- 
151, 173, 177, 294. 

Brazil, ambassador to, 23. 

Brown, Justice Henry B., views on 
safety legislation, 509, 510. , 



INDEX 



66l 



Bryan, William J., Democratic candi- 
date, 556, 557, 559, 572; secretary 
of state, 81. 

Bryce, James, views on the Constitu- 
tion, 277; on the gerrymander, 48; 
on governmental ability of Anglo- 
Saxons, 575; on the presidency, 
40; on senatorial term, 78; The 
American Commonwealth, 40, 41, 

48, 74, 45i, 49 1 , 590- 

Buchanan, James, and secession, 41. 

Bucks Stove case, 149. 

Budget system, in Europe, 109; in 
states, 448-450. 

Buffalo (N. Y.), railway terminus, 534. 

Bureau of Corporations, 165-167, 172, 
173, 270, 604; Annual Reports, 184. 

Bureau of Research in Municipal 
Public Utilities, 361. 

Burke, Francis, delegate to nominating 
convention, 553, 554. 

Burr, Aaron, candidate for president, n. 

Business, a nationalizing force, 3 ; 
associations and the executive, 588, 
589; associations and public opin- 
ion, 575, 576; expansion of, 4, 165; 
relation to government, 6, 7, 65, 
119, 120, 342-365, 467-529; repre- 
sented by parties, 552, 567. 

Butler, Nicholas Murray, views on 
governor's accountability, 317. 



Cabinet, freedom of choice for, 15; 
influence on legislation, 17, 18, 21; 
procedure, 37-39; relation to press, 
40. 

Cabolt, A. T., The State and its Part in 
the Tuberculosis Movement, 439. 

Calhoun, John C, senator, 85. 

California, civil service in, 501 ; elec- 
tion machinery, 304, 306, 554; 
forest reserves, 262; irrigation, 
271; Japanese policy, 20 ; labor 
laws, 372; manufactures in, 146; 
obligation of contracts, 465-4O7; 
railway, 530; recall. 6l6j taxation, 

446; limber and Stone Ait, 268; 

trial, 474; Utilities Commission, 
350; valuation in, 357; woman 
suffrage, 30.1; Session LGWS, 040. 
Calvert, Thomas II., Regulation of 

( 'otumerce, tax, [38, 101 , • 1 

Canada, adopts federal eonstitut ion, 
o-l ; ballots in, 054; labor arbitra- 
tion, 301. 305; reciprocity treaty 

with, 84, 8$. 

Cannon, Joseph, Speaker of the 

House, 49; revolt against;, 52. 



Canton (Ohio), McKinley's home, 559. 

Capital, growth, 4. 

Carey Act of 1895, reclamation law, 
271, 272. 

Carranza, Venustiano, president of 
Mexico, 28. 

Cash payment of wages, 391, See also 
Wages. 

Caucus, in House of Representatives, 
57-60, 69; in Senate, 86. 

Census Bureau, permanency, 18. 

Central America, relations, 22, 29, 50; 
institutions, 515. 

Central Pacific Railway, lawsuit, 530. 

Centralization, tendencies, 3-5, 450. 

Champion, C. F., prosecuted, 192. 

Charities and Corrections, supervised 
by States, 433-439, 586. 

Charleston (S. C.), bond taxation, 521, 
522. 

Charters. See Incorporation. 

Chase, Samuel, impeached, 83. 

Checks and balances, theory, 5, 7, 8, 20. 

Chemistry, Bureau of, relation to 
Pure Food law, 194, 196-199; Re- 
ports, 194, 200. 

Chicago (111.), arbitration at, 392; 
Board of Trade, 145 ; Civic Federa- 
tion Bulletin, 626; civil service, 
602, 603 ; fertilizer company, 502 ; 
grain elevators, 468; grain inspec- 
tion, 525; local public service, 359; 
packing companies, 143; political 
headquarters, 552; strike, 33 ; traffic 
regulations, 204 ; voters' league, 311; 
white slavery, 188; University Press, 
618,626. 

Chicago, Burlington and Quincy Rail- 
way, 513. 

Chicago, Milwaukee and St. Paul 
Railway, 283. 

Chief Justice, presides at impeach- 
ment, 83; salarv, 279. See also 
Supreme Court. 

Child labor, gro vth of, ; federal 
regulation, 100, 200, 3:1. 37a; 

state regulation, 470. 586; national 
association for, 576, 580. 

ChiKls. R. S., secretary, 650; The 

Short Ballot Cities, 620, 626; "The 

Short ballot.'" 622, 651 658. 
China, citizens protected, 470. 

immigration from, 5K) ; relations 

with. .-i. ::. 19, [86 ; treab . 
Christie Grain and Stock Company, 
lawsuit, 145, 140. 

Cincinnati (Ohio), rebating system in. 
131 ; University, lo 1. 411. 41 :. 

Cities, bonds and funds not I 

96, 07; civil service in. 



662 



INDEX 



601-603; growth of, 6, 298; rail- 
way discrimination against, 125, 
126; reduction in size of council, 
60; reference bureau, 403, 576; 
relation to Rivers and Harbors 
Bills, 65. 

Citizenship, denned by Supreme Court, 
486-490. 

Citizens' League. See National Citi- 
zen's League. 

Civic Associations, influence public 
opinion, 585-587. See also. Na- 
tional Civic Federation. 

Civil Rights. See Citizenship. 

Civil Service, appointments in, 595 ; 
civil pensions, 605-607 ; forbids 
contributions to party, 564; history 
of, 580, 581, 586, 592-606; Illinois 
system, 602, 603; New York sys- 
tem, 601, 602; number of positions, 
14; obstacles to, 593; promotions 
in, 596; service records, 597. See 
also Removals. 

Civil Service Commission, 45, 595, 
597, 599» 600, 606; Annual Re- 
ports, 41, 607. 

Civil Service Committee, in Senate, 
86. 

Civil Service Reform League, 580, 581. 

Claims Committee in House, 66. 

Claims Court of, described, 280, 284. 

Clark, Champ, Democratic leader, 57, 
556, 557; Speaker of House, 49. 

Clark, L. D., The Law of the Employ- 
ment of Labor, 396. 

Class legislation and Fourteenth 
Amendment, 478-480. 

Clay, Henry, as leader in Congress, 
20; introduces Missouri Com- 
promise, 570; senator, 78, 85. 

Clayton Act, 173, 184, 579; and 
holding companies, 176; interlock- 
ing directorates, 176; labor com- 
bines and injunctions, 177, 293, 396; 
legalizes boycott, 150, 151; liability 
of directors, 175 ; relation to patents, 
I 55> I 56> 161 ; status of injured 
competitor, 173; trade relations, 

175. 

Cleveland, Cincinnati, Chicago and 
St. Louis Railroad, lawsuit, 209- 
210, 485, 533. 

Cleveland, Dr. F. A., heads committee 
on finance, 109; Organized Democ- 
racy, 590- 

Cleveland, Grover, candidate for presi- 
dent, 12; governor, 317; hinders 
declaraJon of war, 27, 28; influence 
on legislation, 37 ; relation to Sen- 
ate, 85 ; suppresses strikes, 33 ; 



treaties, 84 ; views on negro citizen- 
ship, 461; views on Venezuelan 
boundary dispute, 27. 

Cleveland (Ohio), Leader, cited, 556. 

Coinage, power of, 110-112. 

Coinage Committee in House, 66. 

Cold storage, regulated, 426. 

Collier, William M., Bankruptcy, 229. 

Colorado, civil service in, 601 ; direct 
primary, 306; forest reserves, 262; 
mining, 539; radical senators from, 
91; recall, 616; reclamation in, 
271, 272; Utilities Commission, 
359; woman suffrage in, 304. 

Columbia University, and legislative 
reference bureau, 331; Studies in 
History, Economics, etc., 451. 

Combines. See Corporations. 

Commerce, definition of, 120; does 
it include manufacturing, 121; inter- 
state not taxed by states, 102, 523, 
527-545; regulation of, 119-140, 
187-217, 586. See also Business 
and Interstate Commerce Commis- 
sion. 

Commerce Committee, of Senate, 86. 

Commerce Court, instituted and abol- 
ished, 127; composition, 280. 

Commerce Department, 18, 165; sec- 
retary, 38, 166, 189, 194. 

Commercial law, growth, 6. 

Commission Government for states, 
332-334; for cities, 619-621. 

Committee system, in House of Repre- 
sentatives, 52-54, 59, 69, 73; 
Conference, 66-68, 70; in Senate, 
86, 87; in state legislatures, 327, 
328. 

Company Store orders, 391. _ 

Competition, state regulation, 361- 
365; limited by public service 
commissions, 355. 

Comptroller of Currency, 19, 112, 113, 

115- 

Concentration of power, in Congress, 
4; in national government, 3, 6-9; 
in Presidency, 4, 5. See also 
Centralization. 

Confederate officers, disabilities re- 
moved, 78. 

Congress, admits new states, 250-252; 
amount of business, 6, 31, 32; 
anti-trust legislation, 141-184; 
bankruptcy legislation, 226-229; 
concentration of power in, 4; 
control of territories, 245-250 ; dele- 
gation of powers, 257, 258; foreign 
affairs, 27, 28; growth of powers, 
4, 94; implied powers, 254-257; 
naturalization legislation, 253-257; 



INDEX 



663 



power of taxation, 94-115; regu- 
lation of commerce, 1 18-140, 187- 
217, 586; relation to cabinet, 39; 
relation to executive, 10, 16-18, 31, 
32; war power, 231-243. See also 
House of Representatives and Sen- 
ate. 

Congressional Directory, 89. 

Congressional districts, 47, 48. 

Congressional Record, leave to print 
in, 71. 

Connecticut, civil service in, 601; 
franchise, 303; Highway Commis- 
sioner Report, 450; highway legis- 
lation, 442-444; Session Laws, 645. 

Conservation of resources, laws for, 
18; policy, 260-272; National 
Commission Reports, 271, 273; Na- 
tional Congress, 576. 

Conservatism, of Senate, 75; of 
business regulation, 119. 

Constitution, changes in, 21, 277, 453, 
456, 490, 491 ; compromises, 47, 
78; construction, 94; denned, 9, 
491 ; executive provisions, 30, 35 ; 
general welfare clauses, 102, 103; 
interpretations by judiciary, 275- 
279, 282-287; militia provision, 
239; naturalization, 253; supreme 
law of the land, 251, 282, 286, 454; 
text, 629-641 ; unwritten, 455. See 
also Amendments. 

Constitutional Convention, and 
slavery, 47; motives, 5, 46, 76, 
453 ; occasion for, 101 ; state 
sovereignty in, 78. 

Constitutional protections, 453-491 ; 
and 14th Amendment, 498-530. 

Constitutional safeguards against taxa- 
tion, 5IQ-545- 

Consular service, described, 24. 

Consumer, protected by government, 
119. See also Pure Food Laws. 

Contract, freedom of, 470, 471. 

Contracts, obligation of, 462-465, 
499, 501, 503, 509, 5io, 512, 514. 

Cooke, F. H., Hie Commerce Clause of 

. the Federal Constitution, 138. 

Cooley, Thomas M., Constitutional 
J, imitations on Powers of the States, 
491, 545; Principles of Constitu- 
tional Law, 282. 

Corner, illegal under Anti-trust law, 

^ 153. IS4. 

Corporations, as persons, 478, 48c), 
400; charters protected; 40.' 467, 
499; Commissioner, 166; contribu- 
tions to party funds, 552, 564, 507; 

regulation of, 18, u>, 1 20 [38, 
162, 164-184, 476-4/3, 5 70. 586) 



relation to police power, 500-515- 
taxation, federal, 95, 99-101, 161, 
167; state, 446, 447. See also 
Incorporation. 

Correspondence Schools, state regula- 
tion of, 216, 217. 

Corrupt Practices Act, for elections, 
309-312. 

Corwin, Edward S., Doctrine of Judi- 
cial Review, 491. 

Cotton, J. P., The Constitutional 
Decisions of John Marshall, 295. 

Counterfeiting, detection of, no. 

Courts. See Judiciary. 

Cramp ton, Dr. C. W., on physical 
advancement, 416. 

Crawford County (Pa.), first direct 
primary, 305. 

Credit. See National Credit Men's 
Association. 

Criminal law, evaded, 336, 337. 

Crisp, Charles F., Speaker. of House, 49. 

Croly, Herbert, Progressive Democracy, 
9; The Promise of American Life, 
34o. 

Cuba, during Spanish-American War, 
232, 233, 237; reciprocity treaty, 
84; relations with, 18, 28, 36, 234- 
236, 245. 

Cummins, Albert G., governor of 
Iowa, 317; views on executive in- 
fluence, 20, 21. 

Currency law, 113; forced through 
Congress, 19, 20; reform of, 581, 
582; Currency Reform, 590. See 
also Coinage, Comptroller, and 
Legal Tender. 

Customs, collection, 106, 107; re- 
organized, 107. See also Imports. 

Customs Appeals Courts, described, 
280. 

Customs Court, created, 107. 



1) 



Dairying, in Wisconsin, 404. 

Dallas (Tex.), as railway center, 136, 

Danbury (Conn.), hatters' case, 150. 

"Daniel Hall," steamer. 1^4. 

Danish West Indies, treaty tor. 24, 84. 

Dartmouth College ease, and obliga- 
tion ot" contracts, 462-465; and 
police power, 499, 500. 501, 503, 

Dawson. Miles M., proposes national 
workmen's insurance. 385, 386. 

Dayton (Ohio), city manager, 621. 
Dealey, J. Q., "Tendencies in State 

Constitutions." 

Debs. Eugene Y.. imprisoned, 34, 
1 >egge, . debarred from mads, 12a 



664 



INDEX 



Delaware, equal representation in 
Senate, 77; incorporation in, 342, 
478; size of Senate, 327. 

Delegation of powers, by Congress, 
257, 258. 

Democratic party, closed caucus, 59; 
conventions, 553, 556, 557; electors, 
12, 13; history, 11, 571, 572; 
league of clubs, 568; organization 
in House, 56, 57, 62, 69; platform, 
558; position on Federal regula- 
tion, 171; position on tariff, 63, 
67, 569; relation to labor, 579, 580. 

Demurrage, descrimination in, 124. 

Dennison, William D., governor of 
Ohio, 325. 

Denver (Colo.), commission govern- 
ment, 620. 

Dependencies, control of, 245-250; 
courts for, 281; legislation for, 31, 
61; protection of , 238 ; status, 100, 
101 ; Government of, 258. 

Devine, Edward T., The Principles of 
Relief, 440. 

Dewey, Davis R., Financial History 
of the United States, 115. 

Dick, A. B., claims patent, 155, 158, 
161. 

Dingley tariff bill, 50, 67. 

Diplomatic service, 23, 24, 596, 604. 

Direct Legislation. See Initiative, Re- 
call and Referendum. 

Direct Primaries, for elections in 
states, 305-307, 561 ; for president, 

554, 555- 
Discriminatory laws, decisions on, 

478-480. 
District attorney, importance of office, 

336, 337- 
District courts of United States, 280, 

284. 
District of Columbia, government, 

249; restraint of trade in, 141. 
Division of Powers. See Checks and 

Balances. 
Dodd, W. F., The Amendment of State 

Constitutions, 302. 
Dolley, J. M., Kansas bank commis- 
sioner, 345, 346. 
Double taxation, avoidance of, 104; 

arrangement for, 543. 
Douglas, Stephen A., in committee 

on territories, 61. 
Douma, demands right of taxation, 48, 

95- 
Drawbacks, in tariff laws, 107. 
Dreyfus Affaire, in France, 243. 
Due Process of law, interpreted, 471- 

475- 
Duluth (Minn.), port, 523. 



East St. Louis (HI.), and terminals, 
148, 149- . 

Education, in the Philippine Islands, 
249; technical, 6, 399-417, 586. 
See also National Education As- 
sociation. 

Education Bureau, Bulletins, 417. 

Education Commissioner, Reports, 417. 

Edward I, Parliament of, 77. 

Efficiency, demand for, 8, 9. See also 
Experts. 

Efficiency and Economy, special com- 
mission for, 109, 448, 597 ; Reports, 

115. 

Election Committee, in House of 
Representatives, 66. . 

Elections, Senate indirect, 77, 79- 
81; state laws for, 302-312; of 
1800, n; of 1876, n, 12; of 1908, 
13; of 1912, 13. 

Electoral Commission, of 1876, 11, 12. 

Electors, for president, 10-13 ; system 
criticized, 11, 12. 

Electric lights, patent rights, 154, 155. 

Eliot, Charles W., favors short ballot, 
624. 

Ely, Richard T., Monopolies and 
Trusts, 162; Taxation in American 
States and Cities, 450. 

Employers' Associations, 579, 580. 

Employers' Liability. See Workmen's 
Compensation. 

Enforcement of laws, 30, $$, 34. 

England, ambassador to, 23 ; bank of, 
114; Bill of Rights, 48, 457; cabi- 
net, 38, 39, 68; civil service in, 
603, 604; hostilities with ; 27, 232; 
House of Lords, 82, 91 ; labor 
legislation, 387, 390; labor mem- 
bers in Parliament, 72; monopolies, 
160; precedents in, 5, 45, 48, 70, 
77, 79, I °9, 234, 3io, 400, 454, 457, 
468, 471, 473, 585, 654; Reform 
Bill, 585; struggle over right of 
taxation, 94, 95, 109. 

Equal protection of the law, safeguard 
against class legislation, 478-480. 

Equity, on direct legislation, 612, 626. 

Erdman Act, on labor arbitration, 

132, 133- 
Erickson, Halford, views on public 

utilities' regulation, 360. 
Erie Railroad, case against, 211, 348, 

39 1 - 

Executive. See Governor and Presi- 
dent. 

Excise taxes, of federal government, 
104. 






INDEX 



66 5 



Expenses. See Finance. 

Experts, in government, 6, 7, 169-171, 
404-406, 576, 577, 586. 

Exports, states may not tax, 112, 122. 

Express companies, federal regulation 
of, 120, 127; by Interstate Com- 
merce Commission, 130, 131; op- 
pose Parcels Post, 220; state taxa- 
tion, 534, 537. j 



Factory, inspectors, 369, 370, 374, 
375 ; laws for regulation, 369- 
377; rise of system, 6, 299, 407. 

Fairlie, John A., The National Ad- 
ministration, 41 ; The State Governor, 

339- 

Farmers. See Agriculture and Na- 
tional Grange. 

Faught, AlberfS., "The Civil Service 
Laws of the United States," 602, 
607. 

Federal courts. See Judiciary. 

Federal government, increase of power, 
3, 6; changes in, 5-9; relation to 
treaties, 26. 

Federal incorporation and license, 
181-184. 

Federal regulation of state trade, 
134-138, 349, 350. See also Com- 
merce. 

Federal Reserve Board, duties, 113- 

Federal Safety Acts, constitutionality, 

Federal Trade Commission, proposed, 
162; inaugurated, 167-1 71 ; powers, 
1 71-173; revision proposed, 178- 
183 ; Act, 184. 

Federalist, cited, 45. 

Field, Justice David I)., on state 
authority over commerce, 204, 205 ; 
on public health protection, 504, 

SOS* 

Fielder, James F., governor of New 

Jersey, 318. 
Finance Committee, of Senate, 0; 

86, 577- 
Finances, federal, 105, 100, [09; 

free silver, 569; gold standard, 

112, 570; of party organizations, 

55 3 > 5 3 S67J state, 444 «o. See 
also Hanks, Currency, and Legal 
Tender. 

Finch, James A. (ed.), Federal Anti- 
Trust Decisions t 102. 

Finley, John H. and Sanderson, John 
l ; ., The A me r ic an Executive, 41. 
317,339- 



Fires, factory, 371; loss by forest, 
261; prevention of, 263, 264. 

Fish, Carl Russell, The Civil Service 
and the Patronage, 41, 607. 

Fisher, George S., views on growth of 
constitution, 454 ; Evolution of Con- 
stitution of United States, 454, 491. 

Fiske, John, on early moot, 609; 
American Political Ideas, 609. 

Fitchburg (Mass.), industrial educa- 
tion in, 408, 411, 412, 417. 

Florida, direct primary in, 306; 
swamp lands, 270. 

Floor leader, of House of Representa- 
tives, 54-57, 59, °°- 

Folk, Joseph W., prosecuting officer, 

337- 

Food and Drugs Act, 194-199; Re- 
port and Regidations, 200. See also 
Pure Food Laws. 

Food Inspection, 422-424, 586. 

Foraker, Joseph B., legislates for 
Porto Rico, 101. 

Ford, Henry J., on party finance, 563, 
564, 566; Rise and Growth of 
American Politics, 563, 566, 572; 
The Cost of Government, 91. 

Foreign Affairs, president's relation 
to, 21-30; Senate control of, 24. 

Foreign Affairs Committee in House, 
66. 

Foreign Relations Committee in Sen- 
ate, 84, 86. 

Forest Reserves, created, 18, 261, 262, 
268, 586. 

Forester, Annual Report, 264, 273. 

Forestry Bureau, services, 260, 262- 
265, 604. 

Forests, status of, 261. 

Fowler, Charles \\\, currency bill, 19. 

France, ambassador to, 23; army or- 
ganization, 237, 243; bank of, 114; 

civil service in, 003, 004; executive 
powers, 33; Legislature, 40; wars 
with England, 27; with Germany, 

2\2. See also Dreyfus Affaire, 

Franchise, limitations on, 401; regu- 
lated by States. 30a 304. 
Franchises. See Corporations. 
Frederick the Great, cited, 515. 

Freedom of Contract. See Contract 

ami Liberty. 
Free Silver, movement for, 500. 
Freight rates. See Railways. 

Freund, Dr. Ernest, on sailors' protec- 
tion, 512; The l\>.':\ e /V... \ 5 1 - 

Frisbie . suit against, 470, 471. 

Fuller, Chief Justice Melville.' on 

Wilson Act, 1 13. 
Fulton, Robert, monopoly grant. .\\;. 



666 



INDEX 



Galveston (Tex.), commission govern- 
ment, 619, 620. 

Galveston Railway, taxed, 535, 537. 

Garfield, James A., acquires leader- 
ship, 61. 

Garner, Prof. James W., views on 
amendments to constitutions, 301, 
312. 

George III, grants charter, 462. 

Georgia, and state sovereignty, 279, 
280; direct primary in, 306; gov- 
ernor, 320; Republican delegates, 

553- 

Germany, adopts federal constitution, 
94; ambassador to, 23; bank of, 
114; city managers in, 622; civil 
service, 598, 603, 604; educational 
system, 411; Great War in, 232; 
industrial insurance, 385 ; judicial 
education, 290, 291 ; legislature, 
46, 79, 82; military execution in, 
33; military organization, 237, 238, 
241, 243; prohibits monopoly, 160. 

Gerry, Elbridge, originates gerry- 
mander, 48. 

Gerrymander, described, 48. 

Gold standard. See Finances. 

Gompers, Samuel, labor leader, 292. 

Goodnow, F. J., Administrative Law 
in the United States, 41, 339 ; Politics 
and Administration, 572. 

Gorgas, Col. E. H., in Canal Zone, 
252. 

Gould, Jay, railway owner, 148, 348. 

Government, increased business of, 6; 
influence of science on, 298, 299. 
See also the several functions and 
organs of government. 

Governor of states, 314; appointing 
power, 315, 316; executive, 319, 
320; extradition, 324; judicial 
power, 324, 326; legislative, 317, 
318; military, 323, 324; political 
position, 322, 323; relation to 
party leader, 323; removal power, 
318, 319; veto, 318. 

Governors' Conference, 260, 261, 316, 
329, 643; Proceedings, 316, 450. 

Grand Haven (Mich.), traffic, 134. 

Grand Rapids (Mich.), traffic, 134. 

Grand River, navigation, 134. 

Grand Trunk Railway, taxed, 535, 538. 

Grange. See National Grange. 

Grant, Ulysses S., relation to Senate, 
85. 

Graves, Henry S., forestry service, 263. 

Gray, Prof. John H., prepares report, 
365. 



Great Northern Railway, suit, 136; 
in merger, 146, 147. 

Gruhl, Edwin, on valuation for rate- 
making, 357. _ 

Guam, acquisition of, 61, 245. 

Guarantee of republican form of 
government, 37. 

Gunnison Tunnel, irrigation project, 
272. 



H 



Habeas Corpus, and governors, 324. 

Haines, Charles G., on judicial su- 
premacy, 286; The American Doc- 
trine of Judicial Supremacy, 286, 
295- 

Hall, James Parker, on deprivation of 
property, 476; Constitutional Law, 
476, 491, 516, 545. 

Harlan, Justice John M., defines com- 
merce, 121; on control of immigra- 
tion, 189. 

Harrington, C, State Rights and Na- 
tional Health, 439. 

Harrison, Benjamin, elected, 12; on 
appointments, 14; This Country of 
Ours, 41. 

Hart, A. B., and McLaughlin, Andrew 
C, Cyclopedia of American Govern- 
ment, 41, 417. 

Haskins, Frederick J., The American 
Government, 41. 

Hawaii, annexation, 245 ; army in, 
238; citizenship conferred on, 253, 
254; dealings with, 18, 100; gov- 
ernment, 246-250; in federal court 
district, 280; Governor's Annual 
Report, 258; Organic Act, 258. 

Hayes, Rutherford B., elected, 11. 

Haynes, G. H., Direct Election of 
Senators, 91. 

Haynes, J. R., The Actual Workings 
of the Initiative, Referendum and 
Recall, 626. 

Health, influenced by environment 
497; protected by Police Power, 
500, 503-505; state care for, 419- 
432, 586. 

Heisler, R. C, Federal Incorporation, 
184. 

Hepburn tariff bill, 50. 

Heney, Francis J., prosecuting officer, 
337. 

Herrick, C. A., Commercial Education, 
417. 

Highways, and state action, 442-444, 
586. 

Hill, James J., criticizes Federal Trade 
Commission, 181. 



INDEX 



66 7 



Hoar, George F., views on legislative 
interference, 19, 20. 

Hodges, George H., favors short 
ballot, 624; suggests commission 
government for states, 332-334, 
643-651; The Distrust of Stale 
Legislatures, 340, 643-651. 

Holding companies, and anti-trust 
legislation, 146-148, 176, 177, 361. 

Holmes, Justice O. W., on control of 
immigration, 189; on interpreta- 
tion of the Constitution, 277; on 
social justice, 513. 

Holyoke (Mass.), arbitration in, 394. 

Homestead Law, discussed, 267, 268; 
policy of, 270. 

Honolulu, capital of Hawaii, 246, 248. 

House of Representatives, apportion- 
ment of members, 47 ; caucus 
system, 57-60; committees, 60- 
69; election, 46; floor leaders, 
54~57, 59, 60; impeachment in, 
49, 83; officers, 71, 72; organiza- 
tion, 4; originates tax bills, 48, 
49, 82; popularity, 45, 46; pro- 
cedure, 69-71; qualifications of 
members, 46, 47; Rules Com- 
mittee, 50, 52-55, 555 ^salary, 72; 
sessions, 72-74, 582; size, 6o, 72; 
treaties relation to, 25. 

Houston (Tex.), as railway center, 136. 

Houston, East and West Texas Rail- 
way, 349. 

Huerta, Victorino, recognition of, 28. 

Hughes, Justice Charles, governor of 
New York, 317, 318; on federal 
control of commerce, 135 ; on police 
power, 514; on Pure Food and 
Drugs Act, 195 ; on state taxation, 
526. 

Humphreys, W. H., impeached, 83. 

Hunt, Gov. George W. P., favors short 
ballot, 624. 

Plunter, Prof. W. B., on industrial 
education, 412, 413, 417. 

Hurt ado, , held for murder, 474. 

I 

Idaho, direct primary in, 306; forest 
reserves, 262, 264; mothers' pen- 
sions, 439; recall, 616; reclama- 
tion, 271, 272; woman suffrage, 

304; Session Laws, 645. 
Illinois, borders on Mississippi, 14S; 

civil service in, 001 6q3'j commis- 
sion government, 359; constitu- 
tional amendment, ,;oi ; delegates, 
553; direct primary in, 306 ; edu- 
cation, 401, 405; Food Commis- 



sioner, 424; grants charter, 502; 
governor, 315, 319; legislature, 327, 
649; railway law, 209, 210; rate 
regulation, 468; state budget, 448; 
steel company, 524, 525; taxation, 
525, 540, 543, 544; woman's suffrage 
in, 304. 

Immigration, restriction of, 51, 187, 
188, 586. 

Immigration Commissioner, 188, 189. 

Immigration Committee, in House of 
Representatives, 66. 

Impeachment, formulated by House of 
Representatives, 49, 83 ; list of 
trials, 83 ; tried by Senate, 83. 

Implied powers of Congress, 254-257. 

Imports, federal taxation of, 104, 106 ; 
receipts from, 105, 106 ; states may 
not tax, 102. 

Income tax, federal, 18, 19, 104; 
amended, 98-100, 462; collected, 
107, 108 ; held unconstitutional, 97, 
98, 283 ; revised, 98-100, 167. 

Income tax, state, 446-448. 

Incorporation, charters, 342 ; federal 
and state powers, 181-183, 342, 343, 
542; state laws for, 362-365. 

Independents, in politics, 569. 

Indiana, ballot system, 309; candi- 
dates from, 559; constitutional 
amendment, 301; executive, 315; 
health conservation, 427, 428; radi- 
cal senators from, 91 ; Tax Board, 
533; Session Laws, 645. 

Indians, admitted to citizenship, 253 ; 
treatment of, 586. 

Indirect election. See President and 
Senate. 

Industrial education. See Vocational 
training. 

Industrial Education Association, Pro- 
ceedings, 417. 

Inheritance tax, in several states, 440, 

447-. 
Initiative, tor legislation, 610-61:, 643. 
Injunction, executive use oi, 33, 34* 

intrust cases, 143, 174, 1-5; method 

of granting, 291; regulation of, 

294. 
Inland waters, protection Of, 420 

586; 
inland waterways, improvement of, 

40, 260. 
Inland Waterways Commission, 

Insular AtTairs Bureau, 158, 

Insular AtTairs Committee, in House of 

Representatives, 66. 
Insurance, investigation, 504, 566; 

regulated by State- 400. 



668 



INDEX 



Interior department, auditor, 108; 
Land Office, 267, 268; Reclamation 
Bureau, 272, 604; Reports, 273; 
Secretary, 38, 272; Reports, 273. 

Interlocking directorates and anti- 
trust legislation, 176, 177. 

Internal Revenue, collection organ- 
ized, 107, 108, 167; commissioner, 
99, 106, 107; receipts, 105, 107. 

Internal Waters. See Inland Waters. 

International Harvester Company, 
lawsuit, 481. 

Interpretation of Constitution. See 
Constitution. 

Interstate and Foreign Commerce 
Committee, in House, 65. 

Interstate Commerce. See Commerce. 

Interstate Commerce Commission, 125, 
128, 129, 135, 144, 161, 162, 282, 
348; and Panama Canal Zone, 253; 
complaints received, 130; organiza- 
tion, 126, 127; prosecutions, 131, 
280; rate regulation, 131, 132, 136- 
138, 257, 476; Cases in the Federal 
Courts, 138. 

Interstate Commerce Committee in 
Senate, 86; Hearings, 184. 

Inventions, influence of, 4. 

Investor, protected by government, 
119, 120. 

Iowa, candidates from, 559; charities 
system, 434, 435 ; direct primary 
in, 306; initiative, 611, 612; pro- 
hibitory law, 212, 214; radical 
senators from, 91 ; Railway Com- 
mission, 283; railway liability, 513, 
514; Applied History Series, 626; 
Board of Control, Report, 440. 

Irrigation, federal care for, 254, 271, 
272, 586. 

Irrigation Committee, in House of 
Representatives, 61, 66. 

Italy, ambassador to, 23; imports 
from, 197; in Great War, 232. 

Ives v. South Buffalo Railway Com- 
pany, 380. 



Jackson, Andrew, appointee, 473; 
spoils system, 592, 598; struggle 
with Senate, 85 ; suppressed nulli- 
fication, 570. 

Japan, ambassador to, 23 ; declaration 
of war with Russia, 231, 232; mili- 
tary organization, 237; subjects 
excluded from United States, 26, 
569. 

Jefferson, Thomas, candidate for presi- 
dent, 11; founder of party, 567; 



president, 285; Manual of Rules, 

54- 
Jerome, William T., prosecuting officer, 

337- 

Jersey City (N.J.), commission gov- 
ernment, 620. 

John, King of England, signs Magna 
Charta, 471. 

Johns Hopkins University Studies, 91. 

Johnson, Andrew, and Reconstruc- 
tion, 31; impeachment trial, 49, 
83; presidential tour, 40; struggle 
with Senate, 85, 598. 

Johnson, E. R., and Huebner, G. G., 
Railway Rates and Traffic, 138, 365. 

Johnson, Hiram W., governor, 317. 

Johnson, Julia, pension for, 470. 

Johnson's Cancer Cure, prosecuted, 
195, 196. 

Jones, C. L., Readings on Parties and 
Elections, 312, 572. 

Jones, S. P., on utilities commissions, 

359- 

Journalists, in consular service, 24; 
relation to presidency, 39. 

Judicial Committee of Senate, 86, 
295, S80. 

Judiciary, delays of, 337; relation to 
executive, 34; to legislation, 284- 
287; to national powers, 278, 279. 

Judiciary, federal, 275; criticism, 288; 
jurisdiction, 281, 282; organization, 
279, 280; practical operation, 287; 
removal to, 475 ; simpler procedure, 
289. See also Supreme Court. 

Judiciary, state, 335-339- 

Judson, F. N., Interstate Commerce, 
138, 162, 184, 217; Regulation of 
Commerce, 201 ; The Law of Taxa- 
tion, 115, 545. 

Justice, department of, 38 ; Reform in 
Administration of, 295. 



Kales, A. M., Unpopular Government 
in the United States, 618, 626. 

Kansas, Blue Sky Law, 345, 346; 
charities system, 434, 435; direct 
primary in, 306; governor, 316, 
332, 643 ; initiative and referendum, 
643; insurance regulation, 469; 
legislative reference library, 650; 
Bulletin, 340; legislature, 646-648, 
650; prohibition in, 213, 507; 
radical senators from, 91; recall 
in, 615, 616; refinery, 128; tax 
regulation, 519, 536; woman suf- 
frage in, 304; Session Laws, 645- 
647- 



INDEX 



669 



Kansas City (Mo.), Live Stock Ex- 
change, 145. 

Kasson, John A., reciprocity commis- 
sioner, 24. 

Kentucky, ballot system, 309; direct 
primary in, 306; local option act, 
215; oil regulation, 206, 207; 
slavery in, 325. 

King, Clyde L., editor of Regulation of 
Municipal Utilities, 346, 354; Train- 
ing for the Municipal Service in Ger- 
many, 607. 

Knight, E. C, case under Sherman 
Act, 142, 143. 

Knox, Philander C, on federal police 
power, 199-201. 



Labor, arbitration of disputes, 132-134, 
586 ; boycott and anti-trust legisla- 
tion, 150, 151, 173, 177, 178, 293, 
294; contracts regulated, 187, 188, 
459, 460, 512, 513 ; distrusts in- 
junction, 291, 293; interests of, 6, 
578, 579 5 maximum hours, 135; 
state regulation of, 369-396, 503, 
508. See also Child Labor, Wages 
and Women. 

Labor Department, 38; Bulletin, 396. 

La Crosse (Wis.), university extension 
in, 403. 

La Follette, Robert M., governor, 317. 

Lake Shore and Michigan Southern 
Railway, lawsuit, 209, 485. 

Land, for school purposes, 405 ; frauds 
detected by Secret Service, no; 
reserves of, 265, 266. See also 
Homestead Laws. 

Land Office, 267, 268; Commissioner's 
Reports, 273. 

Latta (S. C), railway station, 210, 211. 

Lawrence (Mass.), strike at, 390, 393. 

Lawyers Cooperative Association, 365. 

Leave to print, as a Congressional 
expedient, 71. 

Lee, Gen. Henry, suppresses Whiskey 
Rebellion, 33. 

Legal tender, law for, in. See also 
Currency. 

Legislation, methods of influencing, 
582-584; president influences, 16- 
18. 

Legislative reference departments, 3 ig- 
33*. 

Legislatures. See House of Repre- 
sentatives, Senate, and State legis- 
latures. 

Liability of directors of corporations, 
175- 



Liberty, definitions of, 496-499; dep- 
rivation of, 471. 

Libraries, extension of, 586. 

Lincoln, Abraham, a strong president, 
41 ; anecdote of, 3 ; declares martial 
law, 455; saved the Union, 298, 
S7o. 

Lincoln (Neb.), Bryan's home, 559. 

Liquors, adulteration of, 193, 197; 
dispensary system, 96, 97; local 
option, 610; prohibition of, 105, 
212-216, 462, 507; sales regulated, 
95, 485, 586; taxation of, 104, 105, 
107, 108, 446. 

Literacy test, for immigrants, 5 1 . 

Living wage, laws for, 388-391. 

Lobby, in state legislatures, 332, 583; 
beneficent efforts, 583, 584. 

Local government, and finance, 445, 
449; and party organization, 561, 
562; and school supervision, 402; 
supervision by state authority, 450. 

Local option, form of referendum, 610. 

Long and short haul, as railway dis- 
crimination, 128-130, 354. 

Los Angeles (Cal.), electricity in, 269, 
466; gas company, 466, 467. 

Lotteries, suppression of, 192, 193, 

50 1 ; 

Louisiana, direct primary in, 306 ; 

franchise requirements, 303 ; lum- 
bering in, 261 ; negro discrimination, 
461, 488, 489; Railway Commis- 
sion, 136; slaughter house cases 
in, 486, 487; swamp lands, 270. 

Louisiana province, purchased, 266, 
278. 

Lowell, A. L., Public Opinion and 
Popular Government, 626. 

Lowell (Mass.), manufacturing at, 503. 

Lowrie, S. G., suggestions on state 
budget, 451. 

Luxemburg, invasion of, 232. 

M 

McAdoo, William G., secretary of 

treasury, 32, 115. 
McCarthy, Dr. Charles A., institutes 

legislative reference work. 330. 331 ; 

on university and state, 405, 400 ; 

The Wisconsin Idea, 4^5. 41 ~ 

McConachie, L. C, C$ 
m$U&8s } 00, 74. 

McGeehee, Lucius P., /">:.<• F'.\ 

I cm, 401, 510. 

McGovern, Gov, Francis J., on Wis- 
consin income tax, 440, 447. 

Mckcnna, Justice Joseph, on business 
regulation, 400, 470, 4S1 . 4S;. 



670 



INDEX , 



Mackenzie-King, Canadian Commis- 
sioner of Labor, 394. 

"McKenzie," steamboat, 260. 

McKinley, William, advocates treaties, 
84; appointments, 24, 246; gold 
standard adopted, 112, 570; hinders 
declaration of war, 27; influence on 
legislation, 18; nominated, 559; 
Southern tour, 40; tariff bill, when 
in House, 50; tariff message, 36. 

Macy, R. H. & Company, suit against, 

157- 
Magazines and postage rates, 225. 
Magna Charta, in England, 48, 471, 

509- 

Maine, direct primary in, 306; elec- 
tion system, 316; railway in, 535; 
Session Laws, 645. 

Manchuria, trade with, 29. 

Mann White Slave Traffic Act, of 
1910, 189-192, 200; text, 190, 191. 

Manufactures, and anti-trust legisla- 
tion, 143, 146; not a part of com- 
merce, 121, 143; rise of, 30, 95; 
taxation of, 103. See also National 
Associations. 

Marshall, Chief Justice John, decision 
on state tax of United States bank, 
102, 278; definition of commerce, 
120, 121, 277; enlarges federal 
power, 278, 279, 285, 286; on ob- 
ligation of contracts, 462, 464, 465; 
on powers of Congress, 255-257, 

275- 

Maryland and United States bank, 
102, 255; bond taxation in, 522; 
direct primary in, 554; Public 
Service Commission, 351, 352; Tax 
Commission, Report, 450. 

Massachusetts, arbitration law, 392- 
395 ; ballot, 309 ; civil service, 
601, 602; congressman, 51; dele- 
gates, 557 ; direct primary, 306, 554; 
educational system, 400-402, 408, 
410,413; finances, 445, 520; gerry- 
mander in, 48; governor, 316; 
health regulations^ 420, 421, 424, 
425, 427 ; highway legislation, 442 ; 
labor laws, " 371, 503; legislative 
bills, 645 ; oleomargarine law, 207, 
208 ; supreme court, 284 ; taxation, 
541, 542 ; wage commission, 387- 
391 ; workmen's compensation, 383 ; 
Session Laws, 645. 

Meat inspection, laws for, 193, 194, 
198. 

Meece, G. W., consignee, 215. 

Mellen, C. S., railway president, 348. 

Memphis (Tenn.), commerce, 526, 
527; shipments to, 524, 525. 



Merchant Marine Committee, of House 
of Representatives, 132. 

Merriam, C. E., Nominating Elections, 
312. 

Message, president's annual, 35, 36. 

Metal Trades. See National Metal 
Trades Association. 

Mexico, adopts federal constitution, 
94 ; ambassador to, 23 ; relations 
with, 22, 27, 28, 29. 

Meyer, E. C., Nominating Systems, 
305, 306, 312. 

Michigan, commerce in, 134; direct 
primary, 306, 554; mothers' pen- 
sions, 439; recall, 616; Republican 
delegate, 553; swamp lands in, 
270; Law Review, 339; Session 
Laws, 645. 

Miles Medical Company, lawsuit, 158, 
161. 

Military Affairs. See Army. 

Military Affairs Committee in House, 
66; in Senate, 86, 236. 

Militia, organization, 238-242; rela- 
tion to governors, 323, 324; uses 
°f, 33; Circular of Information, 

243- 
Mills, Gen. A. L. Report, 243. 
Milwaukee (Wis.), gas rates in, 359; 

Socialist member from, 72; tax 

investigation in, 447; university 

extension, 403. 
Mimeograph Case and Sherman Act, 

155, 156. 
Minerals, conservation of, 265, 266. 
Minimum wage, in United States, 

387 ; for women, 389. 
Minneapolis (Minn.), voters' league, 

359- 

Minnesota, charities system, 434, 438, 
439 ; direct primary in, 306 ; forest 
reserves in, 262; radical senators 
from, 91 ; railway rate cases, 135, 
136, 282, 347; recall, 616; referen- 
dum, 611; Senate's size, 327; 
swamp lands, 270; taxation, 537. 

Mint, director of, 19. 

Mississippi, gerrymander in, 48; lot- 
tery, 501 ; railway, 206 ; Republican 
delegates, 553; swamp lands in, 
276. 

Mississippi River, bridges and ferries 
over, 148, 149 ; trip on, 40, 260. 

Mississippi Valley, reclamation in, 271. 

Missouri, direct primary in, 306; 
gerrymander, 48; sanitary law, 
205 ; suit in, 481 ; Session Laws, 645. 

Missouri Compromise, 570. 

Mitchell, . John, on industrial educa- 
tion, 414. 






INDEX 



671 



Mobile (Ala.), telegraph taxed, 530. 
Mobile and Ohio Railroad, suit, 206. 
Monetary Commission. See National 

Monetary Commission. 
Monopolies. See Sherman Anti-Trust 

Act. 
Monroe doctrine, influences of, 22. 
Montana, direct primary in, 306, 

554; forest reserves, 262, 264; 

governor, 320; irrigation in, 271, 

272; woman suffrage in, 304. 
Montesquieu, Charles de Secondat, 

baron de, The Spirit of the Laws, 5. 
Moody, Justice William Henry, on 

control of immigration, 189. 
Morals, protected by police power, 

501, 502, 507, 508, 586. 
Morgan, J. Pierpont, controls credit, 

Mothers' pensions, in several states, 

439-. 

Municipal League. See National Mu- 
nicipal League. 

Municipal Research, bureaus for, 403, 
576; Publications, 590. See also 
Cities. 

N 

National Association of Manufacturers, 
414, 575-577,. 579, 580. 

National Association of Wool Manu- 
facturers, 577; Bulletin, 590. 

National Board of Trade, 582. 

National Bureau of Municipal Public 
Utilities Research, 576. 

National Citizens' League, 582, 590. 

National Civic Federation, 365. 

National Civil Service Reform League, 
581 ; Proceedings, 590, 607. 

National Committee, in party system, 
549-553 ; election of, 559. 

National Conference of Charities, 
Annual Report, 440. 

National Control. See Federal regu- 
lation. 

National Convention. See Nominat- 
ing Convention. 

National Credit Men's Association, 
228, 229; Bulletin, 229. 

National Education Association, 576. 

National Grange of Patrons of Hus- 
bandry, 576, 578. 

National Metal Trades Association, 
579- 

National Monetary Commission, 576, 
581, 58a. 

National Municipal League, 570; 
Scries, 346. 

National Municipal Review. 00 -\ 007 
626. 



Naturalization, Congress's power of, 
253, 254; Act, 258. 

Naval Academy, 255. 

Naval Affairs Committee, in House, 
66; in Senate, 86. 

Navigation, protected by Congress, 
122. 

Navy department, auditor, 108; ex- 
penses, 234; secretary, 38. 

Nebraska, direct primary in, 306; 
league of municipalities, 359; 
mothers' pensions in, 439; radical 
senators from, 91 ; railway regula- 
tion, 477, 531 ; legislative reference 
bureau Bulletin, 340. 

Negroes, civil and political rights, 461, 
462, 479, 489, 569; education, 

585. 

Neill, Charles P., Mediation and Arbi- 
tration of Railway Labor Disputes, 
138. 

Net-Weight Act, 196. 

Nevada, direct primary in, 306; 
recall, 616; reclamation, 272; Tim- 
ber and Stone Act, 268; woman 
suffrage, 304. 

New England, governors' salaries, 
315; leadership in Senate, 87; 
manufactures in, 569; railway, 
348; town representation, 301. 

New Hampshire, and Dartmouth 
College, 462-464; direct primary 
in, 306; mothers' pensions, 439; 
size of legislature, 327. 

New Health Policy. See Health. 

New Jersey, charities system, 434, 437, 
439; civil service in, 601; constitu- 
tional amendment, 302 ; corpora- 
tions, 147, 342, 362, 530; direct 
primary, 306, 554; governor, 315, 
318; Highway Commissioner Re- 
port, 450; highway legislation, 
442-444; judiciary, 335; labor 
laws, 3S3 ; regulates competition, 
361; steam navigation in, 2035 
supreme court, 285; Session Laws t 

645- 
New Mexico, admission of, -50, 151; 

recall in, 616. 
New Orleans (La.), coal barge, 5-M; 

slaughter houses in, 4S0. 
Now Republic, 396. 
New York (city), arbitration in. 39a; 

civil service, 598; college of, 

customs collector, 473; high schools. 
410; legislative reference bureau, 

331 ; Publications, 500; partisan 
politics. 358; political headquarters, 

55 \ 505 ; reform. . s 

:dent } 20, :i ; i'. ;, \Y.\ 317. 



672 



INDEX 



New York (state), bank inspection, 
345; charities and corrections, 
434, 437; child labor laws, 371; 
civil service in, 601-603; con- 
stitution, 301 ; educational system, 
40, 410; election machinery, 304- 
306, 310, 553, 619, 625; finances, 
445, 447, 448; forest reserves, 262; 
governors, 315, 316, 318-320; health 
regulation, 428, 429; labor laws, 

372, 375, 376, 380, 381, 39i, 507; 
legislature, 327; life insurance in- 
vestigation, 564, 566 ; manufactures, 
569; presidential election, 12, 13, 
559; pure food regulation, 424; 
railroad law, 205, 211; steam navi- 
gation, 203; taxation, 539, 540, 
543, 544; Utilities Commission, 
358; water powers, 271. 

New York and Lake Erie Railway, 530. 

New York Central Railway, combina- 
tion, 533, 534. 

New York, New Haven & Hartford 
Railway, 205, 348, 485. 

New Zealand, labor arbitration in, 395. 

Newlands, Senator Francis G., amends 
Erdman Act, 133. 

Newport (R. I.), residents lightly 
taxed, 543. 

Newspapers. See Journalists. 

Niagara Falls, generate electricity, 269. 

Nominating Convention, control of, 
550-553; criticized, 560; described, 
553-56o; when held, 12, 549. 

North Carolina, agricultural educa- 
tion, 415 ; franchise requirements, 
303; taxation, 528, 529. 

North Dakota, Congressional election, 
47 ; direct primary in, 306 ; recall, 
616; state budget, 448. 

Northern Pacific Railway, in holding 
Company, 146, 147. 

Northern Securities Case, 146, 147, 
162, 176. 

Nullification, and Andrew Jackson, 
570. 



Oberholtzer, E. P., The Referendum in 

America, 625. 
O'Donnell, , Washington retail 

druggist, 156, 157. 
Officers and employees of House of 

Representatives, 71. 
Ogden, H. N., Rural Hygiene, 439. 
Ohio, candidates from, 559; civil 

service in, 601 ; congressman from, 

50; Constitution of 191 2, 287; 

direct primary in, 306; express 



compames, 220; governor, 315, 325; 
industrial commission, 376, 377, 
382 ; labor laws, 381, 382 ; mothers' 
pensions, 439; railway law 209; 
Republican delegates, 554; state 
budget, 448; taxation, 584. 

Ohio Valley, floods in, 439. 

Oklahoma, direct primary in, 306; 
lawsuit in, 475, 476; oil wells, 128. 

O'Leary, I. P., and Prosser, C. A., 
Vocational Education References, 417. 

Oleomargarine, and pure food law, 
193; Massachusetts, law for, 207, 
208; regulation of sale, 422, 423, 
485 ; taxation of, 103, 104, 107. 

Oregon, election machinery, 305, 306, 
554; forest reserves in, 262, 264; 
initiative and referendum, 610, 611, 
613,614; labor laws, 389; mothers' 
pensions, 439; "People's Power 
League," 334, 335; popular elec- 
tion of Senators in, 80; recall, 616; 
reclamation, 272; state budget, 
448-450; Timber and Stone Act 
in, 268; woman's suffrage, 304. 

"Original package," and state taxes, 
523—525 ; decision on liquor laws, 
212, 213, 485. _ % ^ 

Orth, S. P., Centralization in Ohio, 451. 

Oshkosh (Wis.), university extension 
in, 403. 

Ostrogorski, M., Democracy and the 
Party System in the United States, 
572. 

Outlook, cited, 622, 651. 

Oyster Bay (N. Y.), Roosevelt's home^ 
559- 



Palmer, Maj. John M., on militia, 
240, 241. 

Panama Canal, history of, 6, 18, 252; 
tools, 19, 20. 

Panama Canal Zone, acquisition, 245 ; 
control of, 250; executive care of, 
31; fortified, 238 ; government, 252, 
253 ; Governor's Annual Report T 258 ; 
Organic Act, 258. 

Parcels post, laws for, 18; described, 
220, 221. 

Pardoning power of governor, 324, 325. 

Paris, conference of 1902 at, 190; 
treaty of 1898 at, 246. 

Parks, for municipalities, 586. 

Party, and appointing power, 16, 17; 
and legislation, 17; and under- 
world, 565; caucus system, 57- 
60; finances, 563-567; influence on 
Speaker, 49-53; leaders in House, 



INDEX 



673 



54-57, 59; leaders and governors, 
323; organization of, 560-562; 
personal work, 562, 563 ; regulation 
of finances, 566, 567 ; spoils system, 
593-595; subservience, 567, 568; 
recent changes in, 569-572; .use- 
fulness of, 549. See also National 
Committee, Nominating Conven- 
tion, and Platform. 
Patents, and Sherman anti-trust Act, 

154-157. 

Patents Committee, in House of 
Representatives, 154-157. 

Patten, James A., corners cotton, 153. 

Patton, O. K., Removal of Public 
Officials in Iowa, 626. 

Paul, Samuel, insurance agent, 490. 

Payne tariff bill, 50, 66, 67. 

Peck, James H., impeached, 83. 

Pennsylvania, charities and correc- 
tions in, 434, 437-439; child labor 
laws, 371, 479; constabulary, 324; 
delegates, 553, 554; election ma- 
chinery, 304, 306, 310, 561; execu- 
tive, 315; finances, 445; forest 
reserves, 262 ; franchise require- 
ment, 303 ; gerrymander, 48 ; health 
protection, 422, 424, 425; insurrec- 
tion, 33; labor laws, 372, 376, 384; 
legislature, 327, 645; manufactures, 
569; oleomargarine law, 208, 209; 
presidential election, 12, 13; Su- 
preme Court, 335; taxation, 532, 
539-541 ; Utilities Commission, 354- 

357- 

Pennsylvania Railway, president, 3. 

Pennsylvania University, thesis, 339. 

Pension Office, criticism of, 31. 

Pensions, cost, 234 ; for civil servants, 
592, 605, 606. 

Peonage, laws against, 459, 460. 

Personal property, tax evasion, 446. 

Philadelphia (Pa.), commerce in, 539; 
Fire Association, lawsuit, 540, 544; 
port regulations, 203, 204; reform 
in, 587; trolley freight, 354, 355; 
voter's league, 311 ; Municipal Re- 
search Bureau, Publications, 590. 

Philippine Islands, army in, 238; 
executive care of, 31, 234, 245, 246; 
government, 246-250, 515; legis- 
lature, 31; relations with, 18, 100, 
149; roads in, 248; Commission's 
Report, 258; Organic Act, 2^. 

Philippine Islands Committee, in 
House, 61. 

Pickering, John, impeached, 83, 

Tim-hot, Gifford, and conservation 

policy, 200, a6l. 263. 
Pipe lines, regulation, I;;, 1:8. 



Platform, of party organizations, 558, 
560, 561. 

Piatt amendment, and government of 
Cuba, 234-236. 

Playing cards, taxation of, 104, 107. 

Pocket vetoes, described, 37. 

Police power, and corporation control 
500-502 ; and interstate commerce 
187-200, 217; exemptions from 
501, 502; extensions of, 513, 514 
fraud prevention, 511; health pro- 
tection, 503-505 ; labor contracts 
512; morals, 507; nuisances, 502 
503; relation to prosperity, 514 
515; reasonableness, 505; safety 
508-511; social justice, 511, 512 

5i4. 

Political Parties. See Party. 

Political Science Quarterly, cited, 622, 
626. 

Popularity, of House of Representa- 
tives, 45. 

Populist Party, on free silver, 569. 

Portland (Ore.), commission govern- 
ment, 620; wage rate investigation, 

389. 

Porto Rico, army in, 238; forest re- 
serves, 262 ; government of, 246- 
2 5°, 5 J 5; m federal court district, 
280; relations with, 18, 100, 245; 
tax decision for, 100, 101 ; Governor's 
Annual Report, 258; Organic Act, 
258. 

Porto Rico Committee, of House, 61. 

Post Office department, and Congress's 
powers, 219-222; auditor for, 108; 
civil service in, 599; organization 
of, 222-225. 

Post Office and Post Roads Commit- 
tee, in House, 67 ; in Senate, S6. 

Postal Rates, 225, 226. 

Postal Savings banks, created, 18; 
described, 219, 220. 

Postal Telegraph, proposed, 226. 

Postal Telegraph Companv, taxed. 
538. 

Postmaster General, assistants. :::- 
225; executive power. 31, 3a, .mo. 
aai, 222] in ca inet, 38J Reports, 

229. 
Powers of Congress. 5m Congress 
Pre-emption Act, ol 1841, 20-. 

President, annual message, 35; ap- 
pointing power. 14-17, 504. 505. 
500; cabinet appointments. 15. 
38 ; changed relations, 4, 5, 10 

41 ; direct primary tor, 554, 

election, 10 13, 46a; executive 

d is cretion, 31 .;.;; Influence on 

foreign ali'airs, -1-30; mllueuce 



674 



INDEX 



on legislation, 16-21, 50, 67, 257; 
law enforcement, 30, 33, 34; leads 
public opinion, 39 40; military 
powers, 14; nomination, 12, 549- 
560; protected, no; protection 
of states, 37; relation to cabinet, 
38; relation to Congress, 10, 19- 
21 , 3 1 , 33, 36; relation to de- 
pendencies, 31-33, 245-250, 253; 
salary, 13, 14; treaty making 
power, " 84, 85 ; veto power, 36, 
37; war power, 34, 35, 231, 233. 

Presidential Primary. See Direct Pri- 
maries. 

Price protection, discussed, 159, 160, 

175, 176, i79-i$i. 
Price regulation, safeguards for, 468- 

47 °- 
Primaries. See Direct Primaries. 

Prison reform, in states, 586. 

Procedure, House of Representatives, 
69-71 ; Senate, 87-89. See also 
Judiciary. 

Progressive party, formation of, 551; 
open caucus, 59; party contribu- 
tions, 552, 564; platform, 559. 

Prohibition of liquor traffic, 105, 507 ; 
national amendment for, 462; re- 
lation to interstate commerce, 212- 
216. 

Property protected. See Amend- 
ments : Fourteenth. 

Psychology, political, changes in, 9. 

Public business. See business. 

Public domain, and conservation, 
264-266; and homesteads, 267, 
268. See also Land. 

Public Health Association, 576. See 
also Health. 

Public lands. See Public domain. 

Public Lands Committee, in House, 
66. 

Public opinion, and employers, 579; 
and farmers, 578; and labor, 578; 
and manufacturers, 577; on cur- 
rency, 581, 582; on public service, 
5 80, 581; organization of , 5 84, 589; 
private associations' influence, 575- 
578; relation to president, 19, 39- 
41 ; social trend of, 104, 585-588. 

Public Service Commissions, 350^355; 
advantages of, 358; appeals from 
decisions, 353; conservatism of, 
357 ; defects, 358 • fix rates, 476 ; 
limit competition, 355. 

Public Utilities, 365. 

Public Utilities Commission Reports, 

365- 
Public Utilities Corporation Reporter, 

365. '.'--.: ...... 



Publicity, remedy for trust evil, 122, 

165-168; in party finance, 566, 567. 
Pullman Palace Car Company, strike 

at works, 33, 34; lawsuits, 532, 536, 

538. 
Pure food laws, 18, 193-199, 424-426, 

506, 511. 



Qualifications, of House members, 46, 

47 ; of Senators, 78. 
Quay, Matthew, length of speech, 88. 
Quick government, demand for, 7. 
Quorum, compelled, 70, 71. 



Radical forces, safeguards, 276, 277. 

Rahrer, , liquor dealer, 213. 

Railway Commissions, 348, 349. 
Railway Mail Service, civil service in, 

597- 
Railways, effect of trunk lines, 3; 
equal opportunity with, 6; federal 
regulation of, 6, 120-132, 135-138, 
209-211, 257, 475, 510, 511; re- 
lation to anti-trust legislation, 143, 
144, 148, 149, 161, 162, 181; sen- 
ators interested in, 90 ; state regu- 
lation of, 205, 206, 347-361, 475- 

477, 485, 505-507, 5i3, 5i4, 53o, 
538; state aid to, 521; state safety 
laws, 205 ; taxation, 530-538 ; ter- 
minal discriminations, 125; trans- 
continental lines, 61. 

Rainy River (Minn.), waterpower, 270. 

Randall, Samuel J., Speaker of the 
House, 49. 

Rate regulation. See Railways. 

Ray, P. O., Introduction to Practical 
Politics, 572; Political Parties and 
Practical Politics, 572. 

Rebates, evasion of prohibition, 131; 
federal restriction of, 122, 123, 130, 
132. 

Recall, of judges, 250, 616, 617; of 
officials, 615-617; process, 626. 

Reciprocity, attempt to secure, 258; 
treaties defeated, 84. 

Reclamation, of waste lands, 9, 270- 
272. -• 

Reclamation Bureau, 272, 604; Re- 
ports, 273. 

Recognition of foreign powers, 27, 28. 

Reconstruction, Acts enforced, 31 ; 
construction of, 37; policy, 40; 
relation to Johnson, 49, 598.' . 

Reed, Thomas B., Speaker of the 
House,, 49. 



1 



INDEX 



675 



Reeder, Robert P., The Validity of 
Rate Regulation, 491, 516. 

Referendum, origin, 609; in United 
States, 610-612, 643; objections to, 
612-615. 

Reforms, positive and negative ele- 
ments in, 585. 

Registered professions, 432, 433. 

Registration of voters, 304. 

Regulation, of business, 119, 467; 
limitations on, 468, 469; of ser- 
vice, 477. See also Railways and 
the several public utilities. 

Regulation of Municipal Utilities, 365. 

Reinsch, Paul S., on legislative re- 
strictions, 328; on senatorial power, 
85, 86; American Legislatures, 74, 
85, 91, 328, 340; Readings on 
American Federal Government, 91. 

Removal, governor's power of, 318, 
319; in Civil Service, 597-599; 
president's power, 598. 

Republican form of government, guar- 
anteed, 37. 

Republican party, conventions, 550, 
557; delegation plan, 553, 554; 
electors, 12, 13; history, n, 571, 
572; league of clubs, 568; open 
caucus, 59; organization in House, 
56, 62; platform, 558, 559; posi- 
tion on tariff, 63, 67, 569; revolt 
against Speaker, 50, 51; Southern 
delegates, 553, 554. 

Reserve banks, 113-115. See also 
Federal Reserve Board. 

Restraint of Trade. See Sherman 
Anti-Trust Act. 

Retailers v. Wholesalers, 1 51-153. 

Rhode Island, charities system, 434; 
equal representation in Senate, 78. 

Richards^ Dr. Charles R., on industrial 
education, 410, 411, 417. 

Richberg, Donald, views on police 
power, 200. 

Ripley, W. Z., Railroads, Rates and 
Regulations, 138, 365 ; Trusts, Pools 
and Combinations, 162. 

Rivers and Harbors Committee, of 
House, 64, 65. 

Roads. See Highways. 

Rockefeller foundation, and college 

aid, 416, 
Roosevelt, Theodore, and eivil service, 
505; as governor, 317: conserva- 
tion policy, 260-262; favors short 
ballot, 624, 625; influence ^mi legis- 
lation, iS, 37; nomination, 557, 
550; on review oi court decisions, 
616, 017; radicalism, 570, 5 i; 
relation to Senate, 8$J Western 



tour, 40; Autobiography, cited, 
624. 

Root, Elihu, favors short ballot, 624; 
secretary of War, 236. 

Rose, J. C, "Negro Suffrage," 303. 

Rosenthal case in New York City, 565. 

Rowe, Leo S., Porto Rico and the 
United States, 258. 

Rule of reason, in anti-trust legisla- 
tion, 148, 149. 

Rural free delivery, inaugurated, 18; 
developed, 225. 

Russia, ambassador to, 23 ; and 
European War, 232; army organiza- 
tion, 237; civil service, 603; Japa- 
nese war, 231, 232; legislature, 48, 
95 ; relations with, 29. 



Safety, regulations for, 205, 508-511. 
Safety Appliance Act, 137, 162. 
Sailors, protection for, 511, 512. 
St. Louis (Mo.), commerce of, 527; 

railway terminus, 209; Terminal 

Association case, 148, 149. 
St. Louis and San Francisco Railway, 

348, 475- 
Salt River, irrigation project, 272. 
Samoa, control of, 250. 
Sanatogen Case and Sherman Act, 

156-158, 160, 161. 
Sanborn, Judge Walter H., ruling on 

Minnesota rate cases, 136. 
San Domingo, treaty with, 84. 
San Francisco, discriminates against 

Chinese, 479; earthquake, 439; 

electricity in, 269; politics in, 565; 

railway agent, 530. 
Saturday Evening Post, 19, 20, 87, 

649. 
Schneider, Dr. Herman, and industrial 

education, 411. 
Schools. See Education. 
Schuylkill Light, Heat and Tower 

Company, 356, 
Science, influence on government, 

298, 299. 
Scott, Thomas, railway president, v ;. 
Sea Girt (N. J.), Wilson at. 
Seager, Henry K., on industrial in- 
surance, 386, 38 
Seattle (Wash.), electricity in, 269. 
Secession, and the presidency, 41. 

Secret Service Of Treasury depart- 
ment . 100, I 10. 

Seligman, Prof, E, K. A., views on 

state income taxation, 446 ; 

on 1 1 ro*j 

440. 



6 7 6 



INDEX 



Senate, aristocracy and conservatism, 
76, 77, 8 1, 90; changes in character, 
'j.6, 90, 91 ; committees, 86, 87 ; 
conference with House, 66-68; co- 
ordinate appointing power, 14-16, 
23, 82, 594; Democratic organiza- 
tion in, 59; election for, 79-81, 462 ; 
executive power, 83; freedom of 
debate in, 87-89; ideals, 76; im- 
peachment in, 49, 83; jealous of 
prerogative, 20; leadership, 85; 
legislative powers, 49, 70; officers, 
89 ; procedure, 87 ; qualifications of 
numbers, 76-81 ; relation to foreign 
affairs, 22; re-election to, 87; salary, 
89, 90; seventeenth amendment, 
81 ; treaty-making power, 23-25, 
83-85 ; term of members, 79. 

Servia, and European War, 232. 

" Seven Sisters," New Jersey incorpora- 
tion law, 362-364. 

Sheldon, A. E., and Keegan, Myrtle, 
Legislative Procedure in the Forty- 
eight States, 340. 

Sherley amendment, of Pure Food and 
Drugs Law, 195, 196, 278. 

Sherman Anti-Trust law, passed, 122, 
132; cited, 141, 142; agreements 
not to compete, 146 ; boycotts, 149- 
151; copyrights, 157; corners, 153; 
exchanges, 145 ; holding companies, 
146-148, 176, 177, 361; manufac- 
tures, 142, 143; patents, 154; price 
protection, 159; railways, 143, 144; 
results, 160, 644; revision, 559; 
579, 580; retain combinations, 151; 
rule of reason, 147. 

Sherman Coinage Act, repealed, 88. 

Shipping rates, proposed control of, 
132. 

Short Ballot, proposition for, 618, 619, 
651-658; in cities, 619-621; re- 
lation to party, 622-624; advocates 
of, 624, 625. 

Short Ballot Association, 576, 590, 
620,622; secretary, 650; Bulletins, 
316, 626. 

Shreveport (La.), rate case, 136, 137, 

349- 

Shuster, W. Morgan, views on foreign 
policy, 29, 30. 

Sickness insurance, for working men, 
386, 387. 

Silver coinage, difficulties of, in, 112. 
See also Free Silver. 

Singer Sewing Machine Company, law- 
suit, 529. 

Skou Christina, purchases mimeo- 
graph, 155. 

Slavery and Congressional represen- 



tation, 47 ; and Thirteenth Amend- 
ment, 250, 459; destroyed by 
public opinion, 585 ; induced seces- 
sion, 41. 

Smith, Charles Emory, on executive 
interference with legislation, 19, 20. 

Smuggling, suppression of, 107, 108, 
no. 

Socialists, in Congress, 72; party 
contributions, 552, 564. 

South Africa, adopts federal constitu- 
tion, 94. 

South America, relations with, 29, 30. 

South Carolina, direct primary in, 
306; gerrymander in, 48; liquor 
dispensary, 96, 97 ; Railway Com- 
mission, 210; Republican delegates, 

553- 

South Dakota, agricultural education, 
415; anti-trust law, 483; charities 
system, 434, 439; Congressional 
election, 47 ; direct primary in, 306, 
554; irrigation in, 272; regulates 
competition, 361, 363. 

Southern Pacific Railway, case against, 
478. 

Southern states, delegations in nomi- 
nating convention, 553, 554; race 
issue in, 569. 

Spain, ambassador to, 23; hostilities 
with, 27, 100, 165, 233, 245. 

Speaker, powers and duties, 49-57; 
substitute, 61, 62. 

Spoils system. See Civil Service. 

Spooner, John C, on executive in- 
fluence on legislation, 20. 

Standard Oil Company, anti-trust 
cases, 144, 147, 148, 152, 169; 
pipe lines, 127, 128. 

Stanwood, Edward, History of the 
Presidency, 41. 

State department, 84; auditor, 108; 
secretary, 22, 37, 38. 

State sovereignty, origin, 3, 4; rela- 
tion to judiciary, 279; relation to 
Senate, 76, 77; reserved powers, 

134. 
States, accounting, 448; administra- 
tion problems, 320; admission of, 
250-252; arbitration of labor dis- 
putes, 391; budgets needed, 448; 
changes in governments, 9, 298- 
300; charities and corrections, 433; 
commission government, 332; con- 
stitutions, 298-312; control of 
interstate trade, 203-217; corpora- 
tion tax, 446; courts, 335~339; 
educational activities, 399-41 7 ; ex- 
ecutive protection, 37; executives, 
314-326; finances, 444-450, 521, 



INDEX 



677 



522; health protection, 419-432; 
incorporation, 181-184; insurance, 
384; legislatures, 10, n, 13, 46, 
326-335 ; elect Senators, 79-81 ; 
reduction of size, 60, 332; distrust 
of, 643-651; legislative reference 
bureaus, 329; party machinery, 
560-562; police, 324; public service 
commissions, 350-357 ; railway regu- 
lation, 125, 205, 206, 348-361, 475- 

477, 483, 505-507, 5i3, 5H, 53o, 
538 ; reserve powers, 255 ; revenues, 
445 ; supervision of local affairs, 
450; taxation, 95-97, 101, 102, 104, 
445, 52ij 5 22 *> treaty rights, 25, 26. 

Steam navigation, monopoly in, 203. 

Steering Committee, in Senate, 87. 

Stevens, William S., Industrial Com- 
binations and Trusts, 162. 

Story, Joseph, Commentaries on the 
Constitution, 283. 

Strikes, and injunction, 293, 294; 
avoided by arbitration, 134; regu- 
lated by state, 391-396 ; suppressed 
by Executive action, 33. 

Suffrage, protected by constitution, 47. 
See also Franchise. 

Sulu Islands, slavery in, 459. 

Sumner, Charles, senator, 85. 

Superior (Wis.), lake port, 525. 

Supreme Court, conservatism of, 76, 
290, 291; constitution of, 279, 280; 
defines citizenship, 486-490; de- 
termines constitutionality, 284-287 ; 
distinguishes between commerce and 
other business, 121, 344; on anti- 
trust acts, 144-162, 480-483; on 
business protection, 468-470, 473 ; 
on control of aliens, 189; on federal 
control of commerce, 134-137, 203, 
205, 206, 209, 211, 282, 476; on 
issue of paper money, m ; on long 
and short haul, 129; on lotteries, 
192, 501; on prohibition laws, 211- 
216; on Pure Food Art, 195, [99, 
20S, 434; on validity of contracts, 

463 465, 467, 489, 501-503; pipe 
line decision. [27; proposed changes 
in, 288, 289; repeals fourteenth 

amendment, 455, 456, 486; tax 
decisions, 05 98, 100, [03, 520 545; 

upholds injunction, 34, [43; de- 
cisions on amendments, 459, 460, 
462, 478 483. 

Survey } 440. 

Swartwout, Samuel, collector of Cus- 
toms, 473. 

Swavne, Charles, impeached, 83, 

Sweat shops, regulation of, 373 376, 
Switzerland, adopts federal constitu 



tion, 94; ballot, 654; initiative 
in, 610, 611; referendum, 609, 613. 



Taft, William H., appointments, 355; 
attempts a budget, 109, 448; civil 
service policy, 595 ; conservation 
policy, 272; elected, 13; influence 
on legislation, 18, 19, 37; nomi- 
nated, 557; on labor boycotts, 178; 
on procedure of judiciary, 289, 295 ; 
on recall of judges, 616, 617; veto, 
216, 250. 

Tariff, a political issue, 569, 576; in 
Ways and Means Committee, 62- 
64, 577; reduction gradual, 105; 
system built up> 95 ; various bills, 
50; of 1890, 257; of 1894, 88; of 
1909, 66-68, 167; of 1910, 50; of 
1913, 18-20, 36, 99. 

Taxation, denned, 519, 520; direct, 
47, 97, 98, 100; federal appraisal, 
543 ; federal collection, 106-109 ; 
federal method, 48, 49, 62, 82 ; 
federal power of, 94-115; of cor- 
porations, 99-101 ; Philippine Is- 
lands, 249 ; regulation by means of, 
103-105 ; restrictions on, 97, 98, 
101, 102; states' systems, 445-450; 
states on United States, 101, 521; 
states on interstate agencies, 522- 
542; state versus national, 103, 
542-545 ; states need revision, 542- 
545, 586; unit rule in, 532~535- 
See also Income Tax. 

Taylor, C. F., Municipal Initiative, 
Refer endum and Recall in Practice, 
626. 

Technical questions in government, 
6, 7. See also Experts. 

Telegraphs, Act of 1S06, 530; taxed, 
530, 536. 

Telephone and telegraph merger, 170. 

Tennessee, direct primary in, 3065 
taxation, 524 5:0, 5.-7. ' 

IVnitories, federal control of, 245- 
250; restraint of trade in, 141. 

See also Dependencies, 
Territories' Committee, in House, 61. 
66. 

Texas, eattle from, barred, 205 ; direct 
primal \ in, 306; Railway Commis- 
sion, 136; railway law. 

Republican delegates, 553; taxa- 

, tion, 535. 
Thayer. James B., i 

1 .:..•. 401. 

s 



678 



INDEX 



Thorpe, F. N., Federal and State Con- 
stitutions, 312. 

Tiedeman, Christopher G., on repeal 
of fourteenth amendment, 456; 
Unwritten Constitution, 455, 491. 

Tilden, Samuel J., candidate for 
presidency, n, 12. 

Timber and Stone Act, of 1878, 268. 

Tobacco, anti-trust cases, 144, 147, 
148, 169 ; taxation of, 104, 107. 

Tonnage taxes, prohibited, 102. 

Topeka (Kan.), bond issues, 519, 520; 
liquor selling in, 213. 

Trade. See Commerce. 

Trade Commission. See Federal Trade 
Commission. 

Tradition, in party subservience, 567, 
568. 

Transportation, growth of, 30, 35; 
evils of system, 65. See also In- 
land Waterways and Railways. 

Transvaal, recognition of, 28. 

Treasurer of United States, duties, 112. 

Treasury department, 106 ; appraisers' 
board, 280; auditor, 108; comp- 
troller, 108; register, 115; secre- 
tary, 19, 32, 38, 106, no, 113, 115, 
194,219; Annual Report, 115. 

Treaties, Cuban Reciprocity (1903), 
36; Paris (1898), 246. 

Treaty-making power, discussed, 24- 
26; of Senate, 83-85. 

Triple Alliance, purpose, 232. 

Triple Entente, purpose, 232. 

Trusts, legislation against, 120, 122, 
132, 141-162, 164-184, 480, 481, 
483, 513; proposed in conventions, 
558, 559- See also Sherman Anti- 
trust Act. 

Tuberculosis, campaign against, 403, 
420, 426, 427, 587. 

Turkey, ambassador to, 23; relations 
with, 29. 

Tweed Ring in New York, 587. 



U 



Uncompahgre, irrigation project, 272. 

Unconstitutionality of laws. See Judi- 
ciary. 

Underwood, Oscar, Democratic leader, 
57, 556; tariff bill of 1910, 50. 

Unemployment, regulation of, 391. 

Union Pacific Railway, suit, 531. 

Unit Rule, in Democratic National 
Convention, 557; in railway taxa- 
tion, 532-535- 

United States Express Company, law- 
suit, 537. 

Universities, relation to educational 



system, 402-405, 415, 416; to 
pure food laws, 426. 

University extension, 403. 

Unwritten constitution, 455. 

U'Ren, William S., favors short ballot, 
624. 

Utah, admission of, 250; labor legis- 
lation, 508, 509; mining in, 539, 
540, 543; mothers' pensions, 439; 
railway in, 530; reclamation, 272; 
woman suffrage, 304. 



Van Devanter, Justice Willis, on anti- 
trust law, 153, 154; on federal 
control of commerce, 137, 138. 

Van Dyne, Frederick, Naturalization 
in the United States, 258. 

Van Hise, Charles R., on University 
Extension, 403 ; Conservation, 273. 

Vaud, Swiss canton, 611. 

Venezuela, boundary dispute, 27; 
collection of debts in, 29. 

Vermont, direct primary in, 306; 
governor's salary, 315; Supreme 
Court, 335. 

Veto power of president, 16, 36, 37, 67, 
613; specific uses of, 216, 250; of 
governors, 318. 

Vice president, election, 10, n; nomi- 
nation, 559; presides in Senate, 86, 
89. 

Virginia, direct primary in, 306 ; equal 
representation in Senate, 78; fran- 
chise requirement, 303 ; insurance 
regulation, 490; taxation, 446. 

Vocational training, 406-414, 417. 



W 



Wage rates, regulation of, 387-391. 
Waite, Chief Justice Morrison R., on 

regulation of commerce, 121. 
Walker, F. A., "Taxation," 545. 
War, declaration of, 27, 231-234; 

powers of Congress, 231-243; 

powers of president, 34, 35, 455. 

See also Army and Navy. 
War department, 243; auditor, 108; 

secretary, 38, 236, 239; Reports, 

2 43- 

Warner, Amos G., American Charities, 
440. 

Wars: American Civil, 3, 22, 35, no, 
in ; American Revolution, 27, 585 ; 
Boer, 28; Great European, 232; of 
1812, 27; Napoleonic, 27; Russian- 
Japanese, 231; Spanish-American, 
27, 232-234, 245. 



INDEX 



679 



Washington, George, achieved inde- 
pendence, 298; asks advice of 
Supreme Court, 284; on foreign 
policy, 22, 27; suppresses Whiskey 
Rebellion, 33. 

Washington (D. C), as journalistic 
center, 39, 589 ; capitol at, 45 ; 
civil service, 596, 598, 606. 

Washington (state), charities system, 
434, 4391 Congressional elections, 
47; department of weights and 
measures, 423; direct primary in, 
306; forest reserves, 262, 264; 
industrial insurance, 384; initia- 
tive in, 612; legislation, 645; lum- 
bering in, 261 ; recall, 616; reclama- 
tion in, 272; supreme court, 284; 
woman suffrage, 304. 

Water power, regulation of, 269, 270; 
supply, in cities, 420-422. 

Waukesha (Wis.), gas rates in, 359. 

Waycross (Ga.), taxation in, 527. 

Ways and Means Committee of the 
House, 50, 59, 580; described, 62- 
64; finance duties, 62, 69, 577. 

Webb Bill, vetoed, 216. 

Webster, Daniel, in Senate, 85; 
views on contracts, 278, 463; on 
due process of law, 474. 

Weights and Measures, regulation of, 
423, 424- 

Wellington Development Company, 
fraudulent concern, 222. 

West Virginia, health regulation, 504; 
incorporation in, 342; industries, 
384. 

Western Union Telegraph Company, 
dissolves telephone merger, 170; 
suits, 530, 536, 537. 

Weyl, Walter E., on social liberty, 498, 
499; The New Democracy, 498, 516. 

Wheat shipments, taxation of, 525, 526. 

Whig Party, attitude on progress, 571. 

Whiskey Rebellion, suppressed, 33. 

White, Chief Justice Edward D., on 
patent restriction, 161 ; on taxation 
of interstate commerce, 528, 537. 

White Slave traffic, restricted, 188- 
192, 508. 

Whitman, Charles S., prosecuting 
officer, 337. 

Whitten, R. II., Public Administration 
in Massachusetts, 451 ; Valuation of 
Public Service Corporations, 365. 

Wickersham, George \\\, Attorney 

General, a 16, 
Wilcox, D. F t| Government by the 

People, 626. 

William ill, called to throne of Bug- 
land. 457- 



Williams, John Sharp, Democratic 
leader, 57. 

Willoughby, W. W., Constitutional 
Law of the United States, 217, 516, 
545 ; The Supreme Court of the 
United States, 295. 

Wilson, Woodrow, addresses Congress 
in person, 36; appointments, 246; 
election, 13, 556, 557; favors short 
ballot, 624; financial reform, 109; 
governor, 317, 362, 559; influence 
on legislation, 19, $6, 171; nomina- 
tion, 556, 559, 572; Congressional 
Government, 19, 74. 

Wilson Prohibition Act, 212-216; 
tariff of 1897, 50. 

Wines, Dr. Frederick H., on board of 
control, 434, 435. 

Wisconsin, and food and drugs law, 
198, 199, 424; Board of Control 
Report, 440; Board of Public 
Affairs, 322, 449; charities' system, 
434, 435, 438, 439 5 civil service, 
601, 603; election machinery, 304, 
306; governor, 316; Industrial 
Commission, 375, 388; industrial 
education, 408-410; insurance regu- 
lation, 344, 345; labor laws, 375, 

382, 383, 388-391; legislation pro- 
posed, 645 ; legislative reference 
department, 330, 331 ; radical sena- 
tors, 91 ; Railway Commission, 
352-354,. 359; recall in, 616; 
registration of lobbyists, 332; Tax 
Commission, Incom-e Law, 45 1 ; 
taxation in, 446-448; Timber and 
Stone Act applied to, 26S; uni- 
versity system, 403-406. 

Wisconsin and Michigan Railway, 

taxed, 537. 
Woman Suffrage, in several states, 

303, 304; national amendment 

for, 462. 
Women, factory legislation for, 371, 

372, 503; wage rate. 388, 389. 

See also White Slave traffic. 
Woodburn, James A., Political P 

572; The American Republic and Its 

Government. 37, 74. 
Workmen's Compensation law-. 

383, .5«> 513; . 

Wyoming, charities' system, 434; direct 
primary in, 306; forest reserves, 
262; irrigation, -'71, :;j; woman 
suffrage, 304. 



Vale Law Sehool. address by Senator 
Knox, 100, k>] . 



a/3. 



■ ^A1 7 / -S 
I £0 






